
1/ 



Bisstnrtj 



Sti f tiglatttt^ 

FROM A.D. 602, TO A.D. 1850. 



EDWARD MUSCUTT, 

AUTHOR OF "THE HISTORY AND POWER OF ECCLESIASTICAL COURTS. 



LONDON : 

CHARLES GILPIN, BISHOPSGATE STREET WITHOUT. 

EDINBURGH : ADAM AND CHARLES BLACK. 
DUBLIN : JAMES BERNARD GILPIN. 



1851. 



oaths? 



PREFACE. 



This volume is intended to supply general readers with 
such authentic information as formerly was locked up within 
old Saxon chronicles, Latin canons, or Norman-French sta- 
tutes; and with which antiquarians, lawyers, and civilians were, 
at one time, the only persons acquainted. But, happily, the 
labours of distinguished literary men have, at various periods, 
brought to greater light the facts connected with our early 
Church History. Still, the form in which this knowledge 
has been conveyed, excludes, to a very great extent, the 
masses of the people from making themselves acquainted 
with the subject. They have been bound to obey laws, the 
merits of which they were unable to test. 

The author of the following work feels happy to acknow- 
ledge his obligations to the distinguished men who have 
made the intricate subject of ecclesiastical legislation their 
study, and to whose labours, in this department of literature, 
our country has been laid under a lasting debt of gratitude. 
Among these are Spelman, Lynwood, Somner, Gibson, Burn, 
and other civilians or divines. The most valuable work, 
however, is Johnson's " Collection of Ecclesiastical Laws." 
This includes the researches of nearly every previous 
writer, and is rendered increasingly useful by having conso- 
lidated information, which before had been hidden under the 
now obsolete Saxon language. Yet it is to such records 
we must refer, ere we can obtain satisfactory evidence of the 
first foundation of the present English church. 



iv 



PREFACE. 



To this work of Johnson (who was vicar of Cranbrook), 
published in 1720, repeated reference will be made. In the 
absence of any other authority being quoted, the reader is 
requested to consider this laborious antiquarian as supplying 
those facts which are drawn from the canons. 

But as canonical laws have not been the only branch of 
legislation called into action upon church questions, nor alone 
supply the whole history of many given points, there have been 
added the statutes. These, in many instances, furnish the 
most remarkable illustrations of the disposition both of the 
civil and spiritual power. By blending the two (which are 
presented in a continuous form), the reader will, at a glance, 
obtain a clear and full view of the mighty influences that 
constantly have been exerted, as well for mischief as for 
benefit. 

In respect of the statutes quoted, it may be sufficient to 
state, that Keble's compilation, and that published by the 
Commissioners of Public Records, have been exclusively used. 

It only remains for the author to express his sincere and 
grateful acknowledgments to the authorities of several public 
institutions, and to private friends, who have kindly afforded 
him every facility in the prosecution of his labours. Among 
the former are included the Trustees of the British Museum, 
and the Council of the Law Incorporated Society ; and among 
the latter he begs particularly to express his thanks to 
W. T. Alchin, Esq., the learned librarian of the corporation 
of the city of London, for many opportunities afforded of free 
access to, and assistance in, consulting works in the Guildhall 
Library. 



KlNGSLAND, 

27 tb February, 1851. 



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CHURCH LAWS. 

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Laws delineate national character. They serve not introduction , 
only to portray the features, but in many instances 
help to perpetuate the dispositions of those from whom 
they derived their birth. This embodiment of the 
moral and intellectual condition of any people is most 
expressively marked in laAvs which relate to religion ; 
other codes are a miniature profile — these, a full- 
length portrait. In the one we have an outline form 
of government ; in the other, its hidden motives and 



living power. Ecclesiastical jurisprudence must, there- 
fore, always sustain a unique and emphatic distinction. 
This fact is, in itself, sufficient to induce a desire to 
become acquainted with the system, even though it were 
not associated with another fact of singular practical 
moment. It is this : — the greater portion of mankind 
take their prevailing notions of religion from existing 

B 



2 



INTRODUCTION. 



introduction, laws. These, rather than moral evidence, become the 
media through which they obtain their knowledge, 
estimate their obligations, and govern their decisions. 
~No matter how absurd, presumptuous, or savage soever 
these laws may be, there are always some who will 
justify their enactment, and aid in their execution. 

In reference to this compilation of church laws, it 
may, perhaps, be desirable at once to state that all 
legal technicalities are avoided. While the facts it 
records are drawn from sources which neither lawyers 
nor statesmen will attempt to upturn, or impugn ; the 
principles it illustrates are those only which have been 
enunciated in the several enactments of which it is the 
register. The work is designed to exhibit, from 
national authentic records, the phases through which 
Christianity has passed in this country; and to 
supply the general reader with indisputable data, from 
which he may deduce such conclusions as shall appear 
to his own mind to harmonise with reason and reve- 
lation. 

It is also to be observed, that all these facts and 
principles are given in the words of the laws themselves. 
The observations made, are intended to act as connect- 
ing links to the several subjects, rather than as the 
expression of opinion upon church polity. 



CHAPTER I. 



SKETCH OF THE PROGRESS OF CHRISTIANITY IN BRITAIN 
UNTIL THE ARRIVAL OF AUGUSTINE, a.d. 597. 

The first planters of Christianity unknown. 

The existence of British Churches prior to the arrival of Augustine. 
The state of these churches under the Saxons. 
Arrival of Augustine. 

Resistance of the British bishops to his mission. 
Claim of Augustine to work miracles. 

Eventual submission of Bi'itish Churches to the Bishop of Rome. 



THE FIRST PLANTERS OF CHRISTIANITY IN BRITAIN, 
AND STATE OF THE EARLY CHURCHES. 

By whom Christianity was first proclaimed in these 
isles, is matter of no great importance. It is doubtful 
whether this honour belongs to St. Paul. The early- 
ambassadors of peace were content that their names 
should merge into their labours. It is, however, 
certain that during the apostolic age Britain witnessed 
their zeal, discouragements, and success. 

The history of the early rise and progress of the 
Christian religion in Britain is left in comparative 
obscurity. Historians were at that time more rare 
than warriors. Literature then suffered an eclipse, 

b 2 



4 



THE HISTORY OF 



chap. t. and records were supplanted by traditions. Sufficient 
evidence has, however, attested that in Britain Chris- 
tianity reckoned not a few triumphs. That it had 
become extensively known and appreciated seems 
incontrovertible, from what Bede states as a fact, 
viz., that Lucius, the British monarch, in a.d. 156, 
requested the bishop of Rome to send him over 
additional missionaries. 

That Christian churches greatly increased is evident 
from the recorded testimony of historians, who state, 
that when, in a.d. 301, the violent persecution, 
under the Roman emperors, Dioclesian and his col- 
league Maximilian, broke out, Britain supplied a 
large quota of martyrs. Among these was Alban, 
who had at one time been a pagan idolater. He, 
however, gave shelter in his house to a Christian 
minister, who, fleeing from the persecution that then 
raged in Wales, sought an asylum in the eastern part 
of this island. Through the instructions and example 
of this devoted man, Alban himself became a Christian, 
and sealed his faith with his blood at Verulam, now 
called, in honour to his memory, St. Alban's. Chester, 
also, then had numerous Christian disciples. In 
Exeter, and many other places, numbers of both sexes 
suffered Christian martyrdom. r 

Though this persecution lasted ten years, and was 
designed wholly to extirpate Christianity from the 
Roman empire, there were yet, in a.d. 314, such a 
number of Christian churches left, as to allow five 
British bishops to appear at the council held that 



CHURCH LAWS. 



5 



year at Aries, in Gaul. So again, in a.d. 347, CIIAP 
representatives of British churches were present at 
the council held this year at Sardica. They again 
met with other ecclesiastics from various parts, at 
the council convened at Arminium, in Italy, a.d. 359, 
where, says Collier, (T. 85,) "four hundred western 
" bishops met, all of whom were provided with conve- 
" niences in diet and lodging at the emperor's charge. 
" But the bishops of Gaul andJ3r4tain did not think it 
" proper to be thus supported byjhe^Exchequer, and ^ 
" chose rather to live upon their own pockets." 



STATE OF THE CHURCHES UNDER THE SAXONS. 

The next two centuries witnessed the inroads of the 
Saxons, who, in a fatal moment, had been invited into 
Britain by Vortigern, in a.d. 449. Instead of proving 
auxiliaries, they turned enemies. Fierce wars raged 
between them and the Britons for 130 years. During 
these commotions, the state of the British churches 
became deplorable in the extreme. They were nearly 
overwhelmed and extinguished by the Anglo-Saxons. 
These new settlers adhered to the worship of pagan 
gods, and put an immense number of Christians to 
cruel deaths. 

At length, in a.d. 587, they seized the sovereignty of 
the island, demolished Christian churches, and set up 
their own heathenism. Wales, Cornwall, and Cum- 
berland were the only places where Christianity did 
not lose ground. Had the refugees in those parts 



6 



THE HISTORY OF 



CHAP - L been left to struggle alone and single-handed against 
idolatry and persecution, they would eventually have 
recovered the power of Christian truth and liberty. 
But Rome saw and professed to pity. 

Ten years after the Saxon sovereignty had been 
planted in Britain, Rome sent Augustine with forty 
Benedictine monks, professedly to convert Saxon pagans. 
This conversion had been long a favourite idea with 
Gregory before he became Pope. Twenty-five years 
before the attempt was actually made, he had himself, 
it is said, contemplated coming hither upon this errand. 
The inducement, according to some historians, arose 
from his observing, in Rome, a number of young 
English slaves for sale. The oft-repeated incident 
respecting the "Angli — sed Angilli," bears, however, 
so much the appearance of an after-adjustment of 
phrases, as to induce some historians to attach little 
or no credence to the story. Gregory would probably 
never have planned, nor Augustine travelled, had 
conversion been the only object at which they aimed. 
Under his cowl the monk secreted a mitre. Sub- 
sequent events proved the fact. 



ARRIVAL OF AUGUSTINE. 

Augustine landed in the Isle of Thanet, a.d. 597. 
With solemn pomp and banners flying, he and the 
other monks directed their way to Ethelbert, then 
king of Kent. The wife of this monarch was herself a 
Christian, and had successfully prepared the way for 



CHURCH LAWS. 



? 



the arrival and reception of the Romish emissaries, chap. i. 
By the king they were favourably received, permitted 
to take up their permanent abode in Canterbury, and 
publicly to establish their own religious rites. One 
year after his arrival, Augustine baptised the pagan 
monarch. Saxon temples were speedily converted into 
Christian churches. Christianity, which the Romans 
had attempted to hunt down, and the Anglo-Saxons 
had despised, now became the patronised religion. 
Elated with success, Augustine hurried to Aries in 
Gaul, where he was consecrated " Archbishop of the 
English nation," though, as yet, there was not a single ^ 
bishop^ under his jurisdiction. It is evident, therefore, 
that he sought territorial as well as spiritual power. 
Why he obtained the designation immediately appears. 

RESISTANCE OF THE BRITISH BISHOPS. 

There were already very many English bishops in the 
country ; but they recognised neither the monk nor 
his mission. The first effort of Augustine was to induce 
them to acknowledge both. For this purpose, he sought ^ 
and obtained a conference with them. Seven of them 
met him once and again. At the first meeting, he 
endeavoured to bring them into conformity or unity 
with the Catholic church. To test the truth of the 
doctrines and practices of that church, "Let," said 
Augustine, " some infirm person be brought ; and let 
" the faith and practice of those by whose prayers he 
"shall be healed, be looked upon as acceptable to God, 



8 



THE HISTORY OF 



chap. i. " and be adopted by all." His test succeeded. A blind 
man was brought : over him Augustine prayed ; and 
the blind, it is said, received sight. 

Still the Britons delayed, and disbelieved. " We 
" cannot change our customs," said they, " until we 
" have obtained the consent and leave of the people." 
(Bede, 69.) A second synod was summoned. Augus- 
tine then said, " You act in many particulars contrary 
" to our custom, and yet, if you will comply with me in 
" these three points, viz. — Keep Easter at the due 
" time ; administer baptism, by which we are born 
" again to God, according to the custom of the Holy 
" Roman Apostolic Church ; and, jointly with us, 
" preach the Word of God, — we will readily tolerate all 
" the other things you do contrary to our customs." 

This was their memorable reply:— "The British 
"churches owe the deference of brotherly kindness and 
" charity to the church of God, to the Pope of Rome, and 
" to all Christians ; but other obedience than this we do 
s-sf "not know to be due to him whom you call Pope." 
" And as to our parts, we are under the jurisdiction of 
"the Bishop of Caerleon." # " To whom," says Bede 
(71), " the man of God, Augustine, in a threatening tone, 
" said, that in case they would not join in unity with 
" their brethren, they would be warred upon by their 
" enemies, and should at their hands undergo the ven- 
" geance of death." This was the first specimen of a 
coerced external unity. 



* Rapin, i. 236. 



CHURCH LAWS. 



9 



EVENTUAL SUBMISSION OF THE CHURCHES TO THE CHAP. I. 
BISHOP OF ROME. 

From this period commenced the conflict between 
the bishop of Rome and the English churches. He, 
to be supreme ; they, to retain their self-government. 
The struggle continued until the year a.d. 669, when a.d. 669. 
Theodore, Augustine's sixth successor, came, under 
another direct appointment from Rome. He was sixty- 
six years of age when appointed, by the Pope, arch- 
bishop of Canterbury, and was considered a man of 
literature and of mental energy. He arrived, 27th 
May, 669. Soon after, he made a visitation of his 
province, wherever the tribes of the Angles inhabited. 
By them he was well received, so that under him, 
eventually, the English churches were brought to submit 
to Rome. He was the first archbishop whom they all 
obeyed as their head, and the delegate of the Pope. 

To return to Augustine. The position which at his 
first entrance he was able to assume, emphatically 
favoured his mission. He went direct to Ethelbert, 
wmose wife, Bertha, had upon her marriage stipulated 
the privilege of maintaining, in her own circle, the 
various ordinances of Christianity. She was surrounded 
with a bishop and domestic priests, whom she had 
brought with her from Gaul. These had proved them- 
selves excellent pioneers ; they now became invaluable 
as Augustine's auxiliaries. Rome kept up a confiden- 
tial intercourse with the ardent missionaries. All her 
experience was placed at their service. Ethelbert 



10 THE HISTORY OF 

chap. i. having become the convert, soon avowed himself the 
patron of Augustine. Instead of being surprised at 
his success, our wonder would have increased had it 
not been as great — especially as human aid was not 
the only agency he employed. He pretended to work 
miracles. True, he could not at first induce men to 
believe in his miraculous powers ; but that the preten- 
sion was eventually recognised, appears from what 
Bede states was the inscription upon Augustine's tomb. 
This is the epitaph :- — 

" Here rests the Lord Augustine, first Archbishop of Canterbury, who 
" being formerly sent hither by the blessed Gregory, Bishop of the city of 
" Rome, and by God's assistance supported with miracles, reduced 
" King Ethelbert and his nation from the worship of idols to the faith 
" of Christ; and having ended the days of his office in peace, died the 
" 26th day of May, in the reign of the same king." 

Augustine died a.d. 604. Had this missionary from 
Rome confined his efforts to the propagation of Chris- 
tianity among Saxon pagans, we should have restricted 
our examination of his merits to the results of his 
mission. But he came as an importer of laws as well 
as the herald of peace. These laws have spread them- 
selves over every succeeding age, become inwrought 
into nearly all our national institutions, and by their 
persecuting character created the benumbing influence 
against which the religion of the Son of God has, 
more or less, ever since had to contend. 



CHURCH LAWS. 



11 



CHAPTER II. 

THE VARIOUS KINDS OF CHURCH LAWS. 

Augustine a legislator as well as a missionary. 

§ 1. The introduction of Roman Law into Britain. 

Its character, in respect of religion, borrowed from pagan laws. 

Its influence upon civil rights, as now administered in Ecclesiastical 
Courts and Chancery. 
§ 2. Establishment of Canon Law. 

Source of its authority from Popes, councils, and synods. 

Condemnation of, by statute. 

Still in force. 
§ 3. Statute and Common Law. 

§ 4. Theological compilations having legal sanctions, viz., the Thirty- 
nine Articles and Book of Common Prayer. 



Augustine was no sooner established as an eccle- chap. ii. 
siastic than he undertook the office of legislator. 
Speaking of Ethelbert, Bede, the Saxon historian, 
lib. ii. cap. v., tells us, "Among other benefits which 
" he conferred upon the nation, he also, by advice of 
" wise persons (the Witena Gemot, or Supreme Legis- 
" lative Assembly), introduced judicial decrees, after 
" the Roman model. Among these, he in the first 
" place set down what satisfaction should be given by 
" those who should steal any thing belonging to the 
k church, the bishop, or the clergy, resolving to give 
" protection to those whose doctrine he had embraced." 



12 



THE HISTORY OF 



SECTION I. — ROMAN LAW. 

chap. ii. " The Roman Model," in other words, the Roman or 

Sect. 1. 

civil law. This was divided into several departments ; 
one was styled the "jus sacrum" or pontifical law. It 
treated of religion, the rights of marriage, oaths, sepul- 
ture, the times of pleading in courts of justice, and 
many other matters deemed sacred. One principle ran 
through the whole of this code — the admixture of 
monarchical with ecclesiastical authority. It had been 
incorporated into all the religious institutions of pagan 
Rome. 

The city had not been founded forty years before 
Numa Pompilius became the second monarch. He, 
previous to his election, had been a philosopher, dwell- 
ing amid woods and fountains, deemed at that period 
sacred. His first regal act was to regulate the priest- 
hood. He divided it into eight classes, assigning to 
the highest class the designation of pontijices. These 
he constituted into a college, whose jurisdiction ex- 
tended to all religious or sacred things. The emperors 
were, therefore, styled " Pontifex Maximus," and were 
the centre of all sacred as well as secular authority. 
The designation of Pontifex they might and did occa- 
sionally delegate to subjects, by whom the office was 
eagerly sought, as it was the highest office in the state; 
just as with us, in the present day, the Archbishop of 
Canterbury is the chief permanent delegate of royal 
power. 

Augustus was the first Roman emperor who assumed 



CHURCH LAWS. 



J 3 



the title of Pontifex Maximus. He did this in the chap. h. 

Sect. I. 

735th year of Rome, thirteen years before the Chri 

Roman law. 

tian era. It was retained by his successors for nearly 
400~years. But Gratian, thinking it inconsistent for a 
Christian monarch to bear the title of a pagan high 
priest, by a decree refused the title, 375 years after 
Christ. But though the title was dropped by the 
emperor, the 'principle remained in the law. 

It would have been unwise in Augustine to establish 
the whole Roman code at once. It therefore was gra- 
dually adopted. This model has even, at various times, 
supplied our own English parliament with the motive 
and the form of different statutes. It still pervades 
many of our laws in relation to property and civil 
rights ; it is the basis of all our ecclesiastical laws ; and 
it mainly regulates to this day the practice of the 
spiritual courts; and in many respects governs the 
chancery courts as well. 

The study of this code has invariably been an object 
of prime solicitude with the clergy. " They prepos- 
" sessed," say the Commissioners on Real Property, 
" Richard II. in its favour ; and under his auspices, or 
<c at least during his reign, they converted the chancery 
" office into a court, modelled it according to the civil 
" law, forged for it a process, and gave its ecclesiastical 
"judge the civil code to administer with discretion, 
" under the name of equity. " # 

* Fourth Report of Commissioners on Real Property Appendix, 475. 



14 



THE HISTORY OF 



SECTION II. — CANON LAW. 

The second branch of ecclesiastical jurisprudence is 
the canon law. This sprung out of the ruins of the 
Roman empire. The bishops of Rome had been held 
in profound esteem as residents in, and in a great 
measure presiding over the government of the imperial 
city. They had set up their own laws, first in juxta- 
position, and afterwards in opposition, to those of the 
Roman emperors. Under the influence and authority 
of successive Popes, they were at length consolidated 
by a monk called Gratian, about a.d. 1150, and 
everywhere throughout Europe obtained power. To 
these have been added laws adopted in general councils 
of the church, together with many others made in pro- 
vincial and diocesan councils or synods, held in this 
country under the authority and sanction of the Pope's 
legates,* archbishops, and bishops. f 

One principle pervades canon law ; it is the employ- 
ment of the civil power in enforcing spiritual obliga- 
tions. So early as a.d. 958, we discover this anoma- 

* Legates are of three kinds : — Legati a latere — cardinals sent by 
the Pope, from his own immediate presence ; Legati nati — legates 
born ; such were the ancient archbishops of Canterbury, to whose 
archbishopric legative power was annexed ; and Legati dati — such as bad 
authority from the Pope for a distinct purpose, mentioned in some special 
commission. 

f " The canon law hath the same lineaments and features as the civil 
" law, being framed to render the Pope in the church wbat the Emperor 
"was in the state. And it must be owned they are both perhaps more 
" for the ease of tbe governors ; but not so convenient for the governed." 
— Burn. 



CHURCH LAWS 



15 



lous and hurtful principle. In the reign of Edgar, c g£*- g IL 
we have this canon, or provision as it was called, canon law. 

A.D. 958. 

which King Edgar " made to the praise of God." It 
runs thus : — " Let the bishop be at the county court and 
" also the earldoman, and there let each of them put in 
" use both God's law and the world's law." Thus, the 
church was to bolster up the magistrate by ecclesiastical 
censures ; and the magistrate back the bishop by civil 
punishments. 

This combined rule of government the church was 
the first openly to avow. In King Edward the Con- a.d. io64. 
fessor's time, we find the principle of consolidation 
enunciated and enforced. " If any one out of arrogance 
" will not be brought to satisfaction in the bishop's court, 
" let the bishop notify him to the king, and let the king 
" constrain the malefactor to make satisfaction where the 
" forfeiture is due ; that is, first to the bishop, then to 
" himself ; so there shall be two swords, and one sword shall 
' c help the other." This was the language of the church.* 
The response from the state was as explicit. It silently 
acted upon the principle for nearly 500 years, without 
an express legal recognition. This eventually was done 
in the time of Henry VIII. Much as he disliked the 
Pope, he had no objection to adopt some of the pontifical 
laws. The 24th Henry VIII., cap. 12, declared, that in 
respect " of the spiritualty and the temporalty their 
"authorities and jurisdictions do conjoin together in the 
" due administration of justice, the one to help the other." 



* Johnson's Ecclesiastical Laws, 



16 



THE HISTORY OF 



C ?ett P *2 IL tnese °^ canons are binding upon the laity as 

Canon law. well as the clergy appears from an unrepealed statute. 

The 25th Henry VIII., cap. 21, says, "that such 
" canons, constitutions, and ordinances being already 
"made, shall still be used and executed." It goes still 
farther, and recognises the canon law "as having by 
" the sufferance of the English monarchs obtained among 
" the people, who have bound themselves by long use and 
" custom to the observance of the same." This is a 
recognition of the authority of foreign canon law in this 
nation, on the foot of usage and custom, to which this 
clause adds a parliamentary sanction to our own 
canons.— Gibson, ii. 985. 

But though the act recognised, it at the same time 
emphatically condemned them.* It was clearly the 
intention of the legislature to banish both the pontiff 
and his code of laws. We shall presently see that the 
act gave a pledge to this effect. Commissioners were 
appointed "to search into and determine which of 
"these canons shall be abolished, made void, and of 
" none effect." It went on to say, " till such time" as 
this was done, " all the canons and constitutions not 
" contrary or repugnant to the laws, statutes, and 
" customs of this realm, nor to the damage or hurt of 
" the king's prerogative royal, shall remain in full , 
" force, and be used and executed as they were afore 
" the making of this act." 

* They are described as " much prejudicial to the king's prerogative 
" royal, repugnant to the laws and statutes of this realm, and also over- 
" much onerous to the king's highness and his subjects." 



CHURCH LAWS 



17 



These commissioners went to work, but Henry chap n. 

* beet. 2. 

having died during the examination, the commis- Canon law. 
sion ceased. Edward VI. renewed the commission, 
under which the then commissioners completed a new 
code, bearing the designation of Reformatio Leginn 
Ecclesiasticarum ; but before this book was confirmed 
by parliament the young monarch also died, The 
reason why the abolition was not immediate, is stated 
to have been from " the shortness of time of the session 
" of this present parliament — so that the laws could not 
" be viewed, examined, and determined." The rules by 
which the commissioners were to base their decisions 
were stated to be " the laws of God and the laws 
" of this realm," implying that some of the canons were 
contrary to both. 

It might have been supposed that a branch of juris- 
prudence so emphatically and repeatedly condemned, 
would before this time have been "made void and of 
" no value." Protestantism has not, however, per- 
fected the work chalked out by a Catholic monarch, 
in Catholic times, and by a Catholic parliament. It 
is true, an attempt was made by Archbishop Parker, 
in the time of Elizabeth, to complete the onerous task. 
The statute of Henry VIII., however, remains unre- 
pealed and unsatisfied. So that the legatine laws, 
enacted by the Pope's legates — Otho, in 1237, and 
Othobon, in 1268 — all of which were reported to 
the respective Popes, whose ratification finally gave 
to them living power — are to this day received as part 
of our own domestic constitutions, and parcel of the 

c 



18 



THE HISTORY OF 



°SctY L common ^ aw °f tne church. As such they may be 
canon law. enforced upon all classes, simply because all classes 
have been alike careless as to their abolition. 

The unredeemed pledge recorded in the above act 
of Henry has for three centuries slumbered on the 
pages of the Statute Book; and there it will slumber 
on, " till such time " as the people, in a voice " louder 
" than the sound of many waters," demand that, at once, 
totally, and for ever, these laws be abolished. Why 
has not an indignant people thrown these remnants of 
Home spiritual amid the scattered ruins of Rome 
imperial ? A learned canonist shall give the reply : — 
" One reason" (says Burn on "Supremacy") "why a 
" reformation of the ecclesiastical laws was never 
" effected, seemeth to have been, because it conduced 
" more to the advancement of the supremacy to retain 
" the church in an unsettled state, and consequently 
" more dependent on the sovereign will of the prince." 

There are, however, certain exceptions as to canon 
laws. Those made in the year 1640 were, by the 
13th Charles II., cap. 12, sec. 5, refused confirmation, 
as also " all other ecclesiastical laws or canons not 
u confirmed, allowed, or enacted by parliament, or by 
" the established laws of the land as they stood in the 
" year 1639." A still more remarkable refusal to con- 
firm a foreign canon took place in 1235, when the 
bishops asked the lords to allow a constitution of Pope 
Alexander III., which legitimated children born before 
the marriage of their parents. But the lords " refused to 
" change the laws of the realm." — 21 Henry III., c. 9. 



CHURCH LAWS. 19 



SECTION III. STATUTE AND COMMON LAW. 

The third branch of ecclesiastical jurisprudence is chap. n. 

Sect. 3. 

the common law and the statutes of the imperial par- 
liament. 

These are the supreme authority. They ride over every 
other source of judicial power, be it canon law or ponti- 
fical authority. The state has not, however, yet asserted 
the supremacy of its executive power. It still tolerates 
independent and separate sources of law. Thus, it not 
only admits the pontifical or Roman model, and the 
canon law, in matters both spiritual and secular, but it 
permits archbishops and bishops to appoint their own 
judges, advocates, and proctors ; to require from them 
an oath of obedience to their lawful commands ; and to 
bold over them, in terrorcm, the power of removal at 
pleasure. This latter is a power which does not now 
pertain to the crown, without the decision of both 
houses of parliament. So long as these ecclesiastical 
prerogatives remain, the mitre is placed upon a sepa- 
rate and higher pedestal than the crown. 

The ecclesiastical laws are, it is true, in several acts, 
styled " the king's ecclesiastical laws," and are said to 
be administered by " the king's ecclesiastical judge." — 
(2nd and 3rd Edward VI., c. 23.) But it is contended 
by Bishop Gibson (Vol. ii. p. 969) " that these words 
" do not imply that the church receives its laws, 
" or appoints its judges, by authority derived from the 
" state. They are rather," he says, "the recognition of 

c 2 



20 



THE HISTORY OF 



C ffect"3 IL " ^ e s P^ r ^ ua ^ power of the church, delegated by the 
statute and " ^ aws °f Christ. As proof, the archbishop inquires of 

common law. . 

" every bishop whom he consecrates, whether he will 
" correct and punish evil doers according to such 
" authority as you have by * God's Word,' and as to you 
" shall be committed by the ordinances of this realm ? " 
The bishop must surely have forgotten that this form 
proves nothing. It has itself been provided by a secular 
law, and may at any time be set aside. 



SECTION IV. THEOLOGICAL COMPILATIONS. 

A fourth source of authority is derived from certain 
theological works, adopted in convocation, and con- 
firmed by parliament. These are — (1.) The Thirty- 
nine Articles " agreed to in convocation holden at 
" London, in the year 1562, for the avoiding of diversi- 
" ties of opinions, and for the stablishing of consent 
" touching true religion." These articles form the 
legal authority of the church, as to its reformed faith. 
They were afterwards, by the 13th of Elizabeth, cap. 1, 
sec. 1, confirmed by parliament, and again ratified by 
Queen Elizabeth, after " having been deliberately read 
" and confirmed again by the subscription of the hands 
" of archbishops and bishops of the upper and nether 
"house, in 1571." (2.) The Book of Common Prayer, 
which prescribes the rites of making and consecrating 
deacons, priests, bishops, and archbishops. Various 
changes have at different periods been made in this 
manual of devotion. The last Act of Uniformity is the 



CHURCH LAWS. 



21 



14tli Charles II., cap. 4, and declares the present CI s l ^' 4 IL 
book to be " agreeable to the word of God, and the Theological 

compilations. 

" usage of the primitive church ; " it is the only legal 
formulary " of the administration of sacraments, rites, 
" and ceremonies of the church of England," and con- 
stitutes the standard of appeal of the church as to its 
reformed practice. These two compilations form the 
legal basis of the Reformation. 

Such are the sources of ecclesiastical law. They 
are varied and confused. To the ignorant and unre- 
flecting this may be matter of indifference, if not of 
contempt. To the thoughtful and conscientious, it 
must occasion deep regret. 

" How unlike the complex works of man 

" Heaven's easy, artless, unencumbered plan." 

The word of God is, of itself, sufficient for all purposes 
of faith and practice. And, therefore, as the sixth 
Article (1562) declares, " that whatsoever is not read 
" therein, nor may be proved thereby, is not to be 
" required of any man that it should be believed as an 
" article of faith, or be thought requisite or necessary 
" to salvation ; " — it would surely have been much 
more in harmony with common sense, and those Scrip- 
tures themselves, to have had but this one, and only 
infallible standard of religious government. It is true 
that, in questions of heresy, " the Scriptures" are, by 
the 1st of Elizabeth, cap. 1, sec. 36, to be appealed to 
as authority. But they are clogged by an association 



22 



THE HISTORY OF 



chap. n. with " the four first general councils* or any of them, 
Theological " the consent of parliament, and the convocation." 

•ompilations. ' . ■ »■•', , -, ., t»i 

Still, even this is better than the previous law. By the 
canon of a.d. 1408, " the decrees of the church " were the 
only criteria of heresy. Whoever preached or taught 
anything contrary to these, was declared an heretic, 
and all his goods were confiscated, unless he recanted 
in the parish church of the place where he had taught 
the error. 

* " General councils are not constituted by a Divine authority, since we 
"have no direction given us from God, by which we may know what 
" they are, and what is necessary to their constitution ; and we cannot 
"suppose that God has granted any privileges, much less infallibility, 
" which is the greatest of all, to a body of men, of whom, or of whose 
" constitution, he has said nothing to us." — Bishop Pearson on the 
Thirty -nine Articles (21st), page 201. 



CHURCH LAWS, 



23 



CHAPTER 111. 

CHURCH LAWS IN RELATION TO THINGS CIVIL. 

§ 1. Sacrilege — or stealing goods from a church, or priest. 

Reason for making this the first act of legislation. 

Abolition of, after an existence of nearly 1200 years, illustrative 
of the slow progress of legislation. 
§ 2. Sanctuaries — origin of ; abuses of ; abolition of. 
§ 3. Exemption of priests from civil authority. 

Conflicts between the Church and the State. 

Abolition of. 

§ 4. Striking the clergy ; double penalty for ; abolition of. 
§ 5. Benefit of clergy— What ? 

Remarkable instance of an ex post faclo law, taking away the 
privilege. 

Women excluded from it. 
§ 6. Regalia — as to 

Coining, pardons, counties palatine, treasure trove, wrecks at sea. 
§ 7. Professions and trades. 

§ 8. Judicial powers in secular things. As to Marriages. Wills. 
§ 9. Tithes. 
§ 10. Usury. 

§ 11. Weights and measures: 

§ 12. Slaves. 

§ 13. Taxation. 

§ 14 Burial. 

§ 15. Infliction of death. 

§ 16. Purgation, and the oath ex officio. 



SECTION I. SACRILEGE. 



It might have been supposed, that a religious body chap. 
would have commenced the work of legislation by some 



24 



THE HISTORY OF 



chap. in. enactment relating to spiritual matters. Instead of 
sacrilege, this, they began with the property of priests and the 
church. A distinction was established between those 
possessions which were deemed sacred and those 
acknowledged to be common. This distinction was a 
remnant of pagan superstition, and had run through 
the Roman law. Its design was to frighten the igno- 
rant devotee, and to exalt the cunning ecclesiastic. It 
is obvious, there is no real difference between the pro- 
perty of priests, and that of physicians, lawyers, or other 
men. But Augustine had not been five years in 
Britain before he induced Ethelbert to pass a law 
relative to church goods. It is as follows, 
canon, « These are the dooms (laws) which King: Ethelbert 
" established in the days of Augustine : — 

" God's fee, and church fee, is a twelve-fold mulct." 

Fee here signifies, not land or inheritance, but 
money, goods, or chattels. Whoever should steal any 
of these, belonging " to God or the church," was fined 
twelve times ; whereas, had he stolen the same property 
from a layman, he would have been fined only nine 
times its value. This distinction recognised a principle 
of first-rate magnitude ; a pre-eminent protection over 
property involved the pre-eminent position of its owners. 
These claimants of superiority carried out their prin- 
ciple still further. According to rank among them- 
selves offenders were fined. Thus — 

" The bishop's fee, is an eleven-fold, mulct. 

"The priest's fee, is a nine-hid mulct. 

" The deacon s fee, is a si^-fold mulct. 



CHURCH LAWS. 



25 



" The clerk's fee, is a three-fold mulct. C ^ } 1L 

7 beet. 1. 

" A church's peace, is a tivo-fold mulct." Sacrilege. 

The " peace" here referred to was the quiet enjoy- 
ment of the service of God without molestation. For 
nearly one hundred years, this pre-eminence of pri- 
vilege was exercised by the church. At length a law 
declared : — " Let the protection of the church, and a.d. 6dg. 
" also of the king, be fifty shillings." 

That is, the church and the state exacted similar 
fines for the same offences. Still, the church claimed 
a priority of civil right ; we therefore read, 

" Whatever pleas are held in the court of the king, a.d. ioei. 
"or of any other person, if the bishop's messenger 
"come thither, and open a cause that concerns holy 
" church, let that be first determined. For it is fit that 
" God be everywhere honoured before others." 

Illustrations upon this matter might be multiplied. 
Those adduced are sufficient attestations of the arrogance 
of the priesthood, and the prostration of the secular power. 

All the laws relating to sacrilege have been swept 
away by an act of modern legislation. The 5th and statute 

J " b A.D. 1835. 

6th William IV., cap. 81, vests the goods and chattels of 
churches in their churchwardens, and places them 
under the same laws as relate to property in general. 

One expressive lesson is taught by these facts. It 
appears that twelve hundred years elapsed, before the 
now manifest absurdity of making a distinction between 
the goods of the castle and those of the church entirely 
ceased. So slowly do legislators act, or the people 
progress. 



26 



THE HISTORY OF 



SECTION II. SANCTUARIES. 

chap. in. Paganism, as well in its rudest forms, as in its more 

Sect. 2. to ' 

~~ civilised developments, provided a refuge for culprits. 
Justice has often been seen to slacken its pursuit after 
offenders. It has itself opened a door for a temporary 
escape from personal revenge. It has even stepped 
aside, while criminals hurried on through the gates 
mercy had provided to places deemed sacred. The 
Justinian Institutions 1 * gave protection to slaves and 
others who fled to temples for safety. The men who 
inwrought Roman laws into British customs were 
anxious that Christianity should appear not less merciful 
than paganism. The Christian church recognised the 
custom, and gave to it the sanction of law. The first 
canon upon this subject says, 

a C d u °693 " ^ an y one 1S £ u ^ty °f a ca pital crime, and flees to 
" the church, let him have his life ; but let him make 
" satisfaction, as right directs. If any forfeit his hyde, 
" (i.e. his land held under feudal tenure, which placed him 
" at the mercy of his lord,) let his laches (punishment for 
" negligence in fulfilling conditions) be forgiven him." 

a.d. 710, By virtue of this law, supposed criminals and help- 
less tenants might at any moment hide themselves 
from the merciless grasp of monarchs, or the cruel 
tyranny of barons. The church provided a refuge 
midway between the palace and the castle. It was 
then the only national asylum. 



* Lib. I. tit. viii. sec. 2. 



CHURCH LAWS. 



27 



Under such circumstances, we are not surprised to chap. hi. 

' r Sect. 2. 

find that ecclesiastics adroitly availed themselves of sanctuaries 
what could not but be a popular feeling — viz., a deter- 
mination to keep churches in repair. The Jews would 
have been as likely to allow the high roads to the cities 
of refuge to become impassable, as that Anglo-Saxons 
should suffer their churches to fall into ruins. The 
canon of this year declared, therefore, " All people a.d. iois 
" ought of right to assist in repairing the church." 

This privilege of sanctuary was constantly abused. 
In the time of Edward the Confessor, as he is called, AD - 
a canon passed, which greatly enlarged the right, and 
opened the way for its becoming dangerous. It says, 

" Whenever a guilty or noxious person flies to the 
" church for safety ; let him be seized by no person, 
" after he is in the churchyard. And if he flees into 
" the house or court of the priest, he shall have the 
" same security or protection as in the church, so that 
" the house or court stand on church ground." 

The effects were most calamitous. Not only did 
murderers, robbers, and other criminals, flee to 
the churches for sanctuary ; but fraudulent creditors 
betook themselves to the same place. The 50th A ^ at ^ G 
Edward III., cap. 6, states, " That divers people do 
" give their tenements and chattels to their friends, to 
" have the profit at their will ; and after, flee to the 
" franchise of privileged places, and there live with an 
" high countenance of another man's goods." 

Still the evils remained. The 3rd Henry VII, A s ^. 
cap. 4, effectually prevented such frauds, by declaring 



28 



THE HISTORY OF 



CH s A ect 2 1L " tnat a ^ deeds °f gift, of goods and chattels made in 
sanctuaries. " trust to the use of that person, shall be void." This 
law is still in force, and applies to all deeds. Sanc- 
tuary, however, continued. Henry VIII. curtailed it, 
by reducing the number of sanctuaries, restricting the 
time it was to last, and making other regulations, the 
operation of which tended materially to abate the 
nuisance ; but it was not until the 21st of James I., 

A S D at i6?4 ca P* sec * ^' ^ iat statute declared " that not in 
" any case should sanctuary be admitted or allowed." 

Here again we are met by another illustration of the 
slow and gradual process by which evil customs are 
removed. More than nine hundred years elapsed before 
a rite which partook of an admixture of Jewish and 
pagan origin, was wholly removed from the Christian 
church. And, even then, several years were spent in 
bringing about the abolition. 

It is now necessary to advert to one of the mightiest 
struggles between the legislation of the church and that 
of the state. 



SECTION III.— THE EXEMPTION OF PRIESTS FROM 
THE CIVIL AUTHORITY. 

emptioifrom This extraordinary claim had, from a very early 
audpmSish- period, been made and admitted. Like every other 

ment. 

church privilege, we trace its first manifestation to 
canons, canon law. The earliest is found in " The Excerptions 

A.D. 740. 

" of Ecgbriht, archbishop of York, collected out of the 
" sayings and canons of the holy fathers." The sixteenth 



CHURCH LAWS. 



29 



law in this code says: — "That no priest sue in the chap. hi. 
" secular courts, relinquishing his own law," i.e. the Exemption of 

t ? priests from 

bishop's COUrt. civil autho- 

r rity. 

This was a rule made by Northumbrian priests, and 
applied to civil affairs. Criminal priests were also, by 
a provincial canon made by Boniface, placed under the 
custody, and were to be tried by their bishops. A 
special injunction ordained — 

"That every bishop have one or more prisons in his a.d.1261. 
" bishopric, for the safe keeping of clerks caught in a 
" crime, or convicted of it." 

Later down, similar laws were passed. The state 
not only recognised, but by express statute preserved ^1315. 
to the church this ancient privilege, which, by the 9th 
of Edward II., cap. 15, was pronounced "a laudable 
" custom of the realm, heretofore used." 

The constitution of Archbishop Islip contains a com- canon, 

L L A.I). 1351. 

plaint, that " secular judges put their scythe more 
" usually into God's harvest, notoriously exceeding the 
" bounds of their judicial power ; and usurping a power 
" over the Lord's bishops, who are by no law subject to 
" them, in criminous cases ; so that even priests are for 
" misdeeds put to shameful and unwonted death, to the 
" contempt and scandal of God and holy church, and 
" the grievous hazard of their own souls." 

The next quarter of a century seems to have been 
employed in devising means by which priests might alto- 
gether avoid arrest. In the 50th Edward III., cap. 5, it statute, 

° r ' A.D. 1376. 

is said, "the clergy complain that divers priests, bearing 
" the sweet body of our Lord Jesus Christ to sick people, 



30 



THE HISTORY OF 



chap. in. " or while they attend to divine services in churches, 

Sect. 3. J 

Exemption of " churchyards, and other places, dedicate to God," 

priests from 

riy 1 auth °~ were " arr ested by authority royal in offence of God 
" and of the liberties of holy church, and also in dis- 
" turbance of divine services." The act then declared 
priests free from arrest, " so long as they were so 
" employed," or were " within places dedicate to God." 

This double right of sanctuary (viz., being within 
holy places, or elsewhere employed " in divine offices") 
did not, however, answer all the purposes of the then 
a d. 1377. priesthood. One year after (1st of Richard II., cap. 15), 
another act passed. It is, perhaps, one of the most 
expressive illustrations of manifest jesuitism recorded 
in the Statute Book. This latter act refers to the 
former, and employs nearly the same terms. They 
were, however, most dexterously transposed, and, by 
introducing four or five additional words in the trans- 
position, priests were wholly freed from arrest. These 
are the terms employed : — 

" Because that prelates do complain that people of 
" holy church be arrested out of churches and their 
" churchyards, and also in other places, although they be 
" bearing the body of our Lord Jesus Christ to sick 
" people ; it is ordained, that if any minister of the 
" king or other do arrest any person of holy church 
" by such manner, he shall have imprisonment, and 
" then be ransomed at the king's will, and make gree 
" (satisfaction) to the parties so arrested." 

By inserting " other places," and omitting " dedicate 
"to God," and then coupling "other places" with 



CHURCH LAWS. 



31 



such manner," the desired object was gained. "People chap, hi 



Sect. 3. 



of holy church" were wholly exempt from all process Exemption of 

pries 
civil 
rity. 



priests from 

oi the civil or criminal courts. civil autho- 



In what manner this legalised outrage upon the well- 
being of society and the honour of religion operated, 
is evident from the authentic records of that age. 
Not that priestly felons altogether escaped. Had 
they been permitted to roam at large, the evils would 
not have been so great as the legal mock trials to 
which they were now subjected. Let the reader take, 
as proofs, two laws — one canon, the other statute. 
The former prescribed a process called purgation. 
" Let the priest purge himself by his own veracity 
" (oath), by saying thus, in his holy vestment, before 
" the altar : ' I say the truth in Christ ; I lie not.' 
" Let the deacon purge himself in the same manner." 
This plea of not guilty liberated the criminal! The 
other proof is derived from the Statute Book. It is 
the 1st of Edward III., cap. 12, in a.d. 1327, and 
says, " divers clerks, after their deliverance from the 
" king's courts, do sue in the spiritual courts such 
" indictors (accusers) for having defamed them, to the 
" great damage of the indictors. Wherefore many 
" people be in fear to indict such offenders ! " Could 
justice ever have received a greater outrage, morality 
a deeper stain, or religion a more effectual check? 
The state, therefore, performed good service by prohibit- 
ing, in future, such actions for defamation. It had, how- 
ever, still to struggle hard to purge itself from this 
intolerable encouragement to crime. 



Canon, 
A.D. G9fi. 



32 THE HISTORY OF 

chap. in. During the reign of Edward I. the statute " admo- 

Seot. 3. 

statute, " nisLed the prelates, and enjoined them, upon the faith 
° ld 5p?2! dL " that they owe to the kins;, and for the common profit 

A.D.1275. J & ' / 

" and peace of the realm, that they abate" the nuisance, 
" so that the king shall need not to provide airy other 
" remedy therein." Still the evil remained. More 
than one hundred and twenty years elapsed, and then, 

a.i). 1402. says the 4th of Henry IV., cap. 3, "The Archbishop 
" of Canterbury, for himself and all the other bishops 
" of his province, hath promised to our lord the king, 
" that henceforth any clerk, secular or religious, con- 
" victed of treason and other felonies, shall be treated 
" according to the constitution made in 1351, which 
" constitution was to have been shewn to the king 
" before this next parliament, in order that, if insuf- 
" ficient, some other remedy might be provided." 
Was it ever shewn? Never. The fact of its having 
slumbered under the forfeited faith of the archbishop 
and all his other bishops, is attested by the 23rd 

A s ^ at ^ Henry VIII., cap. 1, sec. 2. It says, "this constitution 
" was never shewn or notified by the prelates, but con- 
" tinually manifest thieves and murderers, found guilty 
" before the king's justices, were, by the usages of the 
" common laws of the land, delivered by such justices 
" to their bishops as clerks convict, who were speedily 
" and hastily set at large by the ministers of the said 
" ordinaries for corruption and lucre, to the great 
" slander of such as pursue the misdoers, and to the 
" pernicious example, increase, and courage of such 
" offenders." More than this. As these criminous 



CHURCH LAWS. 



33 



priests often broke oat of their bishop's prisons, they chap. hi. 

Sect. 3. 

were, for " so breaking and escaping out of prison," Exemption 

of priests 

declared felons; the offender was to be delivered (sup- from civil 

1 authority. 

posing he could be caught) to the king's justices, who 
" were to deliver judgment against him, like as they 
" might do in case the same offender had been a 
" layman." 

This latter clause, it will be observed, points in the 
right direction. It is the first enunciation of a 
common-sense principle of punitive justice ; viz., that 
all men, be their class what it may, shall be amenable 
to the same law, for the same crime. But it was nearly 
ten years before this principle was embodied in the 
statute. The 28th Henry VIII., cap. 1, sec. 7, sub- ad. 1542. 
jected " persons within holy orders, who might be 
" convicted by the king's justices of criminal offences, 
" to all such pains as lay persons admitted to their 
" clergy." Ecclesiastic and laic were now amenable to 
the same laws. Both, however, were allowed what 
was called " benefit of clergy ;" and this privilege, so 
far as it applied to the ecclesiastic, rendered the law a 
dead letter. He, after his conviction, as well as any 
other criminal, could plead, not as formerly he might, 
that he was " in holy orders ;" but that he " could read 
" as a clerk." The fault here lie in retaining the 
privilege for any one. 

The Reformation brought in a law which exhibits /ff 1 "-^ 
the painful fact, that slavery still existed in this country, 
and that such was the detestation in which a slave was 
held, that a " clerk convict" was reduced to his 



34 



THE HISTORY OF 



chap. in. degraded condition. The 1st Edward VI., cap. 3, 
~ ~ declares that criminous priests were to be kept in prison, 

Exemption L 1 A 

from cmi unless " any manner of person would be bound in £20 

authority. m # . 

" to the king, with two sufficient securities, to keep 
" such clerk as his slave five years." Like another 
slave, " he was to be fed with bread, water, and small 
" drink and refuse meat." His master might " cause 
" him to work by beating, chaining, or other such 
" work and labour as he shall be put to, be it never so 
" vile." Upon such security, the bishop was discharged 
any further custody of the clerk. 
ad. i55o. By the 3rd and 4th Edw. VI., cap. 16, English 
slavery ceased. 

ad. 1575. The 18th of Elizabeth, cap. 7, required that clerks 
convict should be burned in the hand, and imprisoned. 

ad. 1825. But it was not until the 6th Geo. IV., cap. 25, sec. 3, 
that persons in holy orders became liable to be tried 
by the authority and laws of the king, rather than by 
those of the bishop. Here, again, is another remarkable 
illustration of the slow, silent, but yet sure, progress 
of enlightenment. More than one thousand years 
elapsed, ere the church could have removed from her 
grasp the sword of justice she swayed over her own 
sons. One clerical privilege, however, remains to be 
considered. It is nearly as ancient as the one just 
referred to. 

SECTION IV. STRIKING THE CLERGY. 

He who committed this offence incurred a double 
penalty. This is contained in statute 9th Edw. II., 



CHURCH LAWS. 



35 



cap. 3, which says, " If any lay violent hands on a chap. in. 
" clerk, the amends for the peace broken shall be ~ Statute, 
" before the king, and for the excommunication before 
" the prelate." The same offence might be punished 
by the magistrate as an assault ; and by the spiritual 
judge, as a cause of correction.* 



SECTION V. — BENEFIT OF CLERGY. 

This was an ancient privilege pertaining to felons. 
After their conviction, if they pleaded and proved that 
they could read as a clerk, although not in holy orders, 
they were not hanged. The assumed reason for this 
privilege was to encourage learning. If so, knowledge 
would have hazarded morals. But the privilege was 
granted in honour of the church. Men had but to 
resemble priests, in the mere mechanical process of 
reading or writing, and they at once escaped the more 
condign punishment that otherwise would have fallen 
on their heads. The most remarkable instance of an 
ex post facto legislative enactment was in a case of 
murder, committed by James Grame, yeoman, upon 
Richard Tracy, gentleman, his master, at Brentwood. 
By the 12th Henry VII., cap. 7, (a.d. 1497), he was 
ordered to be hanged, " notwithstanding his demand of 
" the privilege of his clergy." 

We are not surprised to find the absurd privilege 
abused. The 4th Henry VIII., cap. 2, declares that I.td! ins. 



* This has been repealed by the 9th Geo. IV., cap. 31, sec. 1. A.D. 1828. 

D 2 



36 



THE HISTORY OF 



chap. in. " murders daily increase more and more, because the 

Sect. 5. J 

Benefit of " persons so offending bear them bold of their clergy." 

clergy. J CI 91' « . 

And it is not a little extraordinary that the privilege, 
a.d.1624. for many centuries, extended only to men. The 21st 
James I., cap. 6, says, " Whereas, by the laws of this 
" realm, the benefit of clergy is not always allowed to 
" women convicted of felony, by reason whereof, many 
" women do suffer death for small causes" These were, 
therefore, henceforth to have the benefit of being 
branded "in the brawn of the left thumb with a hot 



5EG .Q.i 



" burning iron, with the mark of the Roman T ; the 
" said mark to be made by the jailer, openly in the 
" court, before the judge." 

Had not humanity been tied down by a ridiculous 
custom, derived from a degrading homage to a par- 
ticular and then pre-eminent class, the law would, 
more speedily than it did, have asserted " the perfec- 
" tion of human reason ; and at once cleared itself 
from a participation in a custom, the very acme of 
folly, injustice, and irreligion. It required, however, 
the dawning light of the nineteenth century, to expose 
a d. 1827. the judicial absurdity. The 7th and 8th of Geo. IV., 
cap. 28, sec. 6, cut away, from every criminal, the plea 
of benefit of clergy. By this act the custom was 
abolished. 

That this and other ecclesiastical immunities should 
so long have prevailed, will cease to excite surprise, 
when we consider that the church exercised higher 
privileges. 



CHURCH LAWS. 



37 



SECTION VI. — REGALIA. 



Many of the prerogatives of the crown were, in ancient 
time, shared by the church. Among these was the 
right of coining money. The canon enacts there shall 
be, " at Canterbury, seven coiners ; four of the king's, 
" two of bishop's, and one of abbott's." Other sees 
enjoyed similar privileges, all of which have long 
since ceased. 



CHAP. III. 

Sect. 6. 



Coiniin 



Canons, 
A.D. 92a 



Pardons, 
A.D. 1281. 



Another royal prerogative consisted in the grant of 
pardons for capital crimes. Murder was designated by 
church law " a greater sin and therefore " we reserve 
" absolution from wilful murder, whether public or 
" private, to the bishops only. By which we intend to 
" curb the boldness of inferiors, and not lessen the 
" reverence of superiors." 

.niDOw WBi 9n? ^8£l9 Jaenims-Qiq nsili bxib i^Ixroxt 
But if ecclesiastics pardoned offences committed by 

members of the state, parliament, it seems, was equally 

ready to grant forgiveness to priestly felons. We 

could scarcely have brought ourselves to believe the 

facts of the case, had not an act of the legislature been 

extant upon this point. It is the 27th of Henry VI., aTiUjaS 

cap. 6, and says, " Forasmuch as many priests were 

« grievously and wrongfully vexed by indictments of 

" felony, our sovereign lord the king, with the consent 

" of this parliament, considering the premises, and for 

" that the clergy having in the last convocation granted 

" to the king a subsidy to be taken of every priest of 

"six shillings and eight pence, hath pardoned and 

" acquitted all and every priest, as well religious as 



Statute. 



38 



THE HISTORY UI 



chap. in. " secular, of all felonies of rape (feloniis de raptu ) done 
Regalia . " before the 1st of June, in the 27th year of his 
" reign." 

The grant of pardons continued to spread immorality 
and crime through the land. To the church they 
produced immense wealth, which certain travelling 
priests, called questors, managed to collect into their 
own pockets, rather than deliver into the coffers of the 
Pope. These, although by the general council of 
Lateran (a.d. 1215) recognised and encouraged, were 
now, in the provincial synod of York, denounced. It 
a dT&j sa y Sj " Some questors, with extreme impudence, and to 
" the deception of souls, have granted indulgences to 
" the people ; from a motion of their own, have dis- 
" pensed with vows ; have absolved from murders, 
"perjuries, and other sins; have remitted what has 
" been stolen, for an uncertain sum of money given to 
" them ; have relaxed a third part of penances enjoined; 
" have falsely affirmed that they have drawn three or 
" more souls of the parents and friends of those who 
" have given them alms out of purgatory, and conveyed 
" them to the joys of paradise, and, to use their own 
" words, have absolved them from all punishment and 
" guilt." " Clement the Pope hath therefore wholly 
" forbidden such abuses," and " we will and charge 
" these questors to sbow their letters apostolical to 
" the bishop, and a schedule of the indulgences [to be 
" preached] in writing annexed to their letters." Re- 
moval was the punishment of transgression. Rectors, &c, 
who admitted any such questor to preach, contrary to 



CHURCH LAWS. 



39 



this new law, were " to pay forty shillings to the fabrick ct ^ g lL 
" of York church." What feebleness of folly ! It con- R eg aiia. 
tinned, however, to weaken the nation and disfigure 
Christianity for nearly another century. 

At length, the state put an effectual stop to the /^llse 
monster evil. The 27th Henry VIII., cap. 24, declared and 1541 ' 
" that divers antient prerogatives of justice appertaining* 
" to the crown, have been severed therefrom." " For 
" reformation whereof it is enacted that no person or 
" persons, of what estate or degree soever they be, shall 
" have any power to pardon or remit any treasons, 
" murthers, manslaughters, nor any kind of felonies 
" whatsoever ; but that the king's highness, his heirs 
" and successors, shall have the whole and sole power 
" and authority thereof united to the imperial crown of 
"this realm." And right well did the nation and 
religion profit by the change. So much so, that within 
five years after the passing of the act, " the profits 
" and emoluments which arose from indulgences and 
" pardons, had now decayed and diminished." — 
32 Henry VIII., cap. 22, sec. 3. 

There were other royal privileges which the church 
continued to exercise long after the passing of the 
above act. Certain places within the jurisdiction of Counties 

a J palatine. 

bishops were possessed of powers jura regalia, or as 
Bracton (Lib. iii. c. 8, sec. 4) expresses it — " regalem 
" potestatem in omnibus." The bishops of Chester and 
Durham claimed these powers by prescriptive right 
and immemorial custom : Lancaster, then within the 
jurisdiction of Chester, by creation, in the time of 



40 THE HISTORY OF 

chap. tit. Edward III. Writs from the king's, courts could not 

Sect. 6. to 

Regalia, run in either of them, without being backed by the 
bishop of the diocese. 

Similar powers were exercised by the bishop of 
Ely. That see was not strictly a county palatine, as 
were those of Chester and Durham ; but claimed its pre- 
rogative by virtue of a grant from Henry I., by which 
the bishop had jura regalia, within the isle of Elyi^ *- 

They have all, however, one after another, been shorn 
of their powers. The first inroad made upon them 
was by the 27th Henry VIII., cap. 24, sec. 3, which 
provided that all "original writs, and judicial writs, 
" indictments, and every process upon the same, in every 
" county palatine, shall be made only in the name of 
" the king ;" and by more recent acts they have wholly 
ceased. 9iL6i sjsri 2Ldh 

Treasure Treasure trove, or money found in the earth, may 
yet be claimed by the bishop within whose limits it is 
canon, 1064. discovered. "Treasures (canon, a.d. 1064) dug out of 
" the earth belong to the king, unless they be found in 
" a church or a churchyard; and though they be, yet 
" the gold and half the silver belong to the king, and 
" half to the church where it is found." 
Wrecks, &e- Wrecks of the sea belong to the lords spiritual 
(1st and 2nd Philip and Mary, cap. 15) in Wales, as 
" lords marchers," who, as such, have all such " waste, 
" straife, infang-thefe, outfang-thefe, treasure trove, 
" deodands, goods and chattels of felons, and all such 
" wreck de mere, wharfage, customs of strangers, as the 
" lords spiritual and temporal have had and used." 



CHURCH LAWS. 



41 



The greater part of these feudal customs have, however, CI |^ t ' 1 6 IL 
long- since passed away. negaJia. 

The inquiry as to this interference of the church with 
secular things is not yet exhausted. 

&b c 9nita[fiq YjtaQJ) £ vltoh*?. Jon 8Bw S9& JbiIT MK 
-eiq s^i bamiBlo ; madia (I Bub istasdO lo saodi aiBw 

SECTION VII. PROFESSIONS AND TRADES. 

Physicians were, at one time, interdicted from admi- 
nistering medical aid, until the priest had been called to 
attend to the sick or dying. 

" Upon pain of anathema, we forbid any physician 
" to give advice for the health of the body which may 
y prove pernicious to the soul. When it happens that 
' ; he is called to the sick man, let him first effec- 
" tually persuade him to call for the physician of the 
" soul, that when the sick has taken spiritual cure, 
# he may, with better effect, proceed to the bodily 
" medicines." 

The sixteenth century fastened the chain which the 
thirteenth century had forged. Invalids were further 
placed at the mercy of the church, by physicians them- 
selves being rendered dependent upon its sanction. 
The 3rd Henry VIII., cap. 11, prohibited any physi- ^ a \fg 
cian in London, or seven miles thereof, from practice, 
" unless he was first examined and approved by the 
" bishop of London." Country physicians were in like 
manner " to be examined and approved by the bishop 
" of the diocese, or his vicar-general." The absurdity 
was virtually got rid of by the 14th and loth 
Henry VIII., cap. 5, creating the College of Phy- 



42 



THE HISTORY OF 



C iect'7 IL S ^ ans mto a corporate body, who were themselves to 
Professions grant licences to physicians. 

and trades. 

statute, Shoemakers were, by the 4th Edward IV., prohibited 
" to pull upon the legs or feet of any person any shoes, 
" buskins, or boots, upon the Sunday, the Nativity, 
" or Ascension of our Lord, or upon Corpus Christi 
" day," under a penalty of twenty shillings. 

By a singular provision in this act, " the dean of the 
" Free Chapel of St. Martin le Grand," and the whole 
of that then privileged spot, especially " St. Martin's- 
" lane" (over which the General Post Office is erected), 
were exempt from its operations. This was a " sanc- 
tuary superior;" i.e., it was a royal as well as an 
ecclesiastical asylum. 

The church had, moreover, previous to the above act 
being passed, so stretched her power as to enclose 

canons, within her grasp every handicraftsman. It declared, 

A.D. 740. » r ^ j 

" Tithes are the tribute of the churches and of needy 
" souls. The Lord, O man ! demands tithes of that 
" whereby thou livest. Pay tithes of what thou gettest 
" by bearing arms, by trade, by handicraft. Our God 
f is not indigent" (pagans had so taught), " he requires 
" not gifts but honours." 

a d. 994. " The same command is given to mariners and land- 
" men, and all who raise profit to themselves by dealing ; 
" so it is enjoined to all men, that out of the same craft 
" from which they produce necessaries for the body, 
" they also produce necessaries for the soul." And 

canon. " We ordain that all who gain profit by merchandise, 

A.D. 1305. ' 

u such as carpenters, blacksmiths, weavers, trunk makers, 



CHURCH LAWS. 



43 



" and all other handicraftinen, pay their personal tithes." chap. hi. 
Victuallers were also liable. — (Canon, 1250.) Professions 

11 • mi anc * trades. 

lhe statute was brought to sanction this tax. Ihe 
2nd and 3rd of Edward VI., cap. 13, and which to this statut^ 
day is unrepealed, requires "every person exercising 
" merchandise, bargaining and selling, &c. (day labourers 
" excepted), shall pay, for his personal tithes, the tenth 
" part of his clear gains." 

How this power was exercised, Bishop Gibson 
("Codex Ecclesiastici," vol. ii. 699) informs us: — "The 
" parson of a parish in Bristol libelled an innkeeper, in 
" the spiritual court, to pay tithes of the profit of his 
ft kitchen, stable, and wine-cellar, alleging that he 
" made great profit in selling his beer, having bought 
o it for £500, and sold it for £1,000."—" So late as the 
" time of the 14th James I., the common law courts 
" were called upon to stay proceedings in the spiritual 
" court, against a parson who claimed servants' wages. 
" The court held that the servants of the plough, as 
" well as the cattle of the plough, should be exempt 
" from tithes." 

The historian of any age, and of any people, will 
search in vain for an instance of religious cupidity 
equally offensive. Well might Sir Michael Foster, one 
of the judges of the King's Bench, in 1736, declare, in 
his " Scheme of Church Power," that " this law was 
" the most grievous tax upon industry the lust of power 
" ever suggested." 

" Artificers strangers' were obliged to become par- 
tial conformists. The 21st Henry VIII., cap. 16, A.D.1524. 



44 



THE HISTORY OF 



chap. m. required " artificers strangers," who had set up their 
Professions trades in St. Martin's le Grand, which was both " pecu- 

and trades. ' . i s *mB 

"liar, and a place of sanctuary, to yield themselves to 
" such direction and order as shall be taken by Cuth- 
" bert, bishop of London." Without such order they 
were prohibited " assembling in any company, cougre- 
" gation, or conventicle." 

Schoolmasters could not teach in any public school, 
or private house, unless licensed so to do by the bishop. 
And to this day, in the list of fees charged by the 
registrars of consistory courts, are the sums charged for 
their licence. 

Midwives, also, could not act without a licence from 
the bishop's court. Before it is granted they must take 
an oath, consisting of fifteen parts, one of which is, that 
no "child shall go unbaptised in the parish, by the 
" ordinary minister, according to the Book of Common 
" Prayer." 

10 xijwiioii t3iii diiiyynoiJ YiiJbiyyL|<r; ji e'byiyiiff ^cYJtB 

ton 9d 889ntend tjbhjobb IsauBb Jjsdt erioiuifo 9rfi " 
-Binifli vlfloyuod OJ byjjjoflbsb ^forisii yd by^ytsinixnf).B *' 

SECTION VIII. — JUDICIAL POWERS IN SECULAR THINGS. 

Priests, at a very early period, acted as judges. It 
a Affile is recorded, that at " a council, celebrated at York for 

A.D. 1195. ' ' 

" reforming the manners of the church, by Hubert, 
" archbishop of Canterbury, in the seventh year of 
" King Edward I., the said legate came to York on 
" the Lord's day, and was received by the clergy in 
" solemn procession. On the Monday he caused 
"assizes de novell disseisin and de mort d'ancestre 
" (actions as to real property), and of all the pleas 



CHURCH LAVS 



45 



" of .the crown, to be holden by his officers ; bat he chap. hi. 

¥ , Sect. 8. 

" and his officials held pleas of Christianity," i.e., the j uc ii Cia i 

ni a^vr^fH^rft hfef T 7 i3t V*faLfi$>£ISP 1© 90bIcD £ il powers in se- 

court christian, as the ecclesiastical courts were then cuiar things, 
called. 

That the archbishop should have exercised this power 
was contrary to a canon which was not then so ancient 
as to have been forgotten. "We deprive priests of a.d. ii.ss. 
" their office and benefice who do public business for 
" secular men.' 5 

This exercise of judicial authority, in matters purely 
civil, is a violation of other canons. The practice has 
been emphatically condemned by statute, and is 
opposed to the well-being of social life. Here is a 
canon, passed " at an English council, celebrated by 
" the Lord Othobon, cardinal legate of the apostolical 
" see of the kingdom of England, in the cathedral 
" church of St. Paul, London, 9th May, 1268." It 
says, " Whereas it specially concerns the honour of 
" the church, that carnal secular business be not 
" administered by hands dedicated to heavenly minis- 
' ; tries ; and we think it sordid for clergymen to gape 
" after temporal jurisdiction, and receive it from 
" laymen ; we therefore, for the extirpating of this 

* horrid vice, strictly forbid all priests whatsoever to 

* accept of a secular jurisdiction from a secular person ; 

* with a saving to the king's prerogative in these 
points." Cunning legate ! Thy " saving" opened 

the very door thou cliclst feign to lock. " The king's 
" prerogative !" This covered the whole question, and 
rendered the interdict a leo-al farce. 



Cauou, 
A.D, 1268. 



46 



THE HISTORY OF 



chap. in. So much for a canon. Now for a statute, passed 

Sect. 8. ' r 

judicial 172 years afterwards. It says, " Whereas, hishops, and 

powers in se- . 

cuiarthings. »• other persons m holy orders, ought not to be entan- 
" gled with secular jurisdiction (the office of the 
'* ministry being of such great importance that it will 
" take up the whole man), and for that it is found, by 
" long 'experience, that this intermeddling with secular 
" jurisdictions hath occasioned great mischief and scandal 
"both to church and state; his Majesty, out of his 
" religious care of the church and souls of his people, 
" is graciously pleased that it be enacted, and by the 
" authority of this present parliament be it enacted, 
" that no archbishop, or bishop, or other person that 
" now is, or hereafter shall be, in holy orders, shall at 
*' any time after the 15th February, 1641, have any 
" seat or place, suffrage or voice, or use or execute any 
" power or authority in the parliament of this realm ; 
" nor shall be of the privy council of his Majesty, his 
" heirs or successors ; or justices of the peace, or oyer 
" and terminer, or gaol delivery ; or execute any tem- 
" poral authority by virtue of any commission ; but 
" shall be wholly disabled, and be uncapable to have, 
*' receive, or execute any of the said offices, places, 
" powers, authorities, and things aforesaid." Every 
thing " done contrary to the true meaning of this act " 
statutes, was declared " void." This was the 16th Charles I., 

A.D. 1640. 

cap. 27. Under the plea of taking away the secular 
power of the church, episcopacy was altogether 
a.d. 1661. upset; but the 13th Charles II., cap. 2, repealed the 
foregoing act. 



CHURCH LAWS. 



47 



There are two civil matters of prime importance to chap. hi. 

r 1 Sect. 8. 

every person in the state, in which the secular jurisdic- 

. i 1 , ,, powers in se- 

tion exercised by persons m " noly orders proves cuiar things, 
highly injurious. These are, marriage and testamentary 
affairs. Let us look at each. 

Marriage. — This is one of the natural rights of Marriage, 
mankind. It falls within the class of privileges per- 
taining to humanity ; and is, therefore, no more per se 
under spiritual jurisdiction, than is the right to breathe, 
to walk, to eat, or to sleep.* 

At common law, marriage has always been regarded 
a civil contract. The Roman law speaks of the " nup- 
" tialia instrumenta ;" i.e., marriage contracts or deeds. 
These constituted the bond of marriage. The form of 
solemnisation does not constitute the obligation of the 
contract, any more than any given attitude, or parti- - 
cular emotion at the time of entering into any other 
contract, forms a part of, or is an essential appliance to, 
the validity of the deed by which that contract was made. 

That marriage is exclusively a civil right is admitted 
by the ecclesiastical commissioners appointed to inquire 
into the practice of ecclesiastical courts. In their 
Report they say, " questions relating to this subject are 
" purely as to the civil right between individuals in their 
" lay character, and are neither spiritual nor affecting 
" the church establishment.'^ This Report was signed 

* To the same effect is the declaration contained in the Justinian 
Institutions (lib. i. tit. 1), "Jus naturale est, quam nos matrimonium 
appellamus." 

t Report, 1830, page 12. 



48 



THE HISTORY OF 



chap. in. by the then archbishop of Canterbury, the bishop of 
judicial London, and distinguished lawyers belonging- to the 

powers in se- 
cular tilings, ecclesiastical and common law courts. 

A sacrament. How, then, did ecclesiastics manage to exercise matri- 
monial jurisdiction ? Principally, by raising marriage 
into a sacrament. See how they played with the 
ignorant credulity of the eighth century. Here is one 
ajEtSo. of their canons — " Let the bridegroom and bride be 
" offered by their parents and bridefolk to receive the 
" priest's benediction ; and let them remain virgins that 
" night, in honour to that benediction when they have 
" received it." 

a.T). i28i. The thirteenth century witnessed the same mental 
and moral prostration. Marriage was now by law 
pronounced a sacrament. " There are seven sacra- 
ments," said the church, " five of which every Christian 
" ought to receive ; viz., baptism, confirmation, penance, 
" the eucharist, and extreme unction. There are two 
" other sacraments : orders, and matrimony. The first 
" is proper for the perfect ; the other, in the times of 
" the New Testament, to the imperfect only ; and yet 
" we believe it confers grace by its sacramental virtue." 
solemnisation As a sacrament, marriage could be solemnised only 

of marriage. 

by priestly hands ; and in a sacred place. An earlier 
Canon, canon provided that " none be joined in marriage but 

A.D. 1200. r 

" publicly in the face of the church, except by the 
" special authority of the bishop." 
statute, Custom and canon law were for ages one upon this 

A.D. 1548. ° A 

point, and statute law agreed with both. The 2nd and 
3rd Edward VI., cap. 21, sec. 3, contrived to deprive 



CHURCH LAWS. 



49 



persons of the liberty to marry, " unless asked in chap. hi. 
" church ; and the ceremony appointed and set forth in j u <iieiai . 
"the Book of Common Prayer performed." But by cuiar things 
the 6th and 7th William IV., cap. 85, sec. 18—21, 
Protestant dissenters may be married in their own 
places of worship, if registered for that purpose ; or at 

the registrar's office ; and adopt any ceremony they 

>ho ai 9T9H .rartneo AM-gie sdfio y^nrrfcsio Jntfioirgi 
may prefer. 

Another matter remains to be considered. It is the Degrees, 
degrees of marriage. As a question of physical science, 
it is undoubtedly most important that persons should 
not intermarry within certain degrees of consanguinity. 
But the church has never placed the question, where alone 
it ought to have been put, viz., upon physical science, 
but upon theological dogmata. We find, therefore, that 
it interdicted persons from intermarrying who bore cer- 
tain spiritual relations to each other. It first decreed: — 

" That no man take a wife that is related to him canon, 

A.D 950. 

" within the fourth degree ; and if any one do it, let him 
" want God's mercy, except he desist and make satis- 
" faction as the bishop directs. If he die in his unrigh- 
" teous marriage, let him forfeit holy sepulture and 
" God's mercy." 

pi HQ I)9SlllflI9!o3 9u DlUOO 9^2J3ITi£HI t JjfT9fD[B'I9J8a 6 SxV. aoiSMinmslnfi 

Having laid hold of these weapons, " holy sepulture 
" and God's mercy," usually wielded in those days of 
revolting superstition, and with which cunning priests 
knew they could easily and effectually frighten the 
ignorant and credulous, they advanced a step farther ; 
and again declared, 

A.D. 

"Never let it be that a Christian marry within the 1009 & 1017 



50 



THE HISTORY OF 



chip. in. " fourth degree, that is, within the fourth generation ; 

Sect. 8. ... .51 

Judicial " nor to his spiritual relations." Who were these ? 

cXrtiiings 6 " His godmother's or godfather's daughter, or the 
" daughter of the priest or person who baptised him." 

The phrase " spiritual relations," by the canon last 
mentioned in the margin, is explained — " his sureties 
" at baptism." 

The effects of these impiously absurd rules were 
frightful in the extreme. Some men would not know 
who was "the priest, or who the person," that had 
baptised him. Should it turn out that he had married 
the daughter of his godfather, his marriage was canoni- 
cal^ void. Nay more. Had it happened that, in case 
of necessity, a parent had availed himself or herself of 
one of the few privileges then allowed by the church, 
and have baptised his or her own child, they were, by 
this act, brought under a spiritual relation; and by 
this means, the natural relation was broken. In other 
words, the parent who baptised his child, dissolved his 
or her own marriage ; — and that though he had baptised 
his child from no other motive than if it had died with- 
out baptism, it would have died without salvation. 
Does the reader hesitate (as well he may) to believe all 
this ? Here is proof of the fact : — 
a.d. 1200. « If a layman baptise a child in case of necessity 
" (and even a father or mother may do it without 
" impeachment of matrimony), let all that follows after 
u the immersion be performed by the priest."* 

" Without impeachment of matrimony,"— the church 

* Johnson's Ecclesiastical Laws. 



CHURCH LAWS. 



51 



had been compelled to relax its law ; the recorded chap. hi. 

r . ' et . Sect. 8. 

relaxation is evidence of the pre-existent enormity. JndiciaI — 1 
This canon repeated a former provision, which inter- SSSS^T 
dieted marriage H between a godson and the daughter 
" of the baptiser ; or of the godfather, whether born 
" before or after." 

The question of degrees has been settled by statute, statute, 

1 & J A.D. 1533. 

The 25th Henry VIII., cap. 22, sec. 3, declares " God's 
"law," — i.e. the Mosaic institution of marriage, — "to 
" prohibit 

" The son, to marry the mother or step -mother ; Degrees. 
" The brother, the sister ; 

" The father, his son's daughter ; or his daughter's 
" daughter; 

" The son, the daughter of his father, born by his 
" step-mother ; 

"The son, the aunt; being his father's or mother's sister; 

" The man, his wife's daughter, or his son's wife's 
" daughter, or his wife's daughter's daughter ; or his 
" wife's sister." 

This latter prohibition had invariably obtained by the 
canon law. Gregory had so instructed Augustine ; 
and so had the church repeatedly, for ages, decreed. 
The state now adopted the same rule, and it did so for 
one express purpose : — to dissolve the marriage between 
Henry and Lady Katherine ; as she was " before the ' 
" lawful wife of Prince Arthur, the elder brother to 
" the king." (Sec. 2, of the above act.) 

Innumerable have been the evils arising from pro- 
hibiting a man marrying the sister of his deceased 

e 2 



52 



THE HISTORY OF 



chap. in. wife. In spite of the statute and of the canon, men in 

Sect. 8. 

Judicial almost every rank of life have done so ; and to do so 

cular things. ' they have a moral right. " God's law " interdicts it 
not. Common sense discountenances it not. Christian 
ethics disapprove it not. Yet, so long as it obtains 
legal authority, the men who transgress run many 
hazards. Children cannot inherit ; the wife could not, 
under such circumstances, claim support, or dower, or 
administer to the effects of her intestate husband ; nor is 
she, in the eye of the law, anything else than a concubine, 
whatever may be her many virtues. Nay more; both the 
man and his wife are punishable, in the ecclesiastical 
court, for breach of canonical law, as fornicators. 

The whole of the laws relating to marriage require 
careful revision. Among many other disadvantages 
entailed upon families, the following may be stated as 
some of the evils which constantly arise from the 
existing state of things. 

As to the degrees of marriage — the law has provided 
two different tribunals. Marriages within the Levitical 
degrees, are, as to their validity, tried in the ecclesias- 
tical courts, and determined by canon, as well as by 
statute law. Marriages without those degrees, by the 
5th and 6th William IV., cap. 54, are left to be tried 
by the courts of common law. 

As to the effect of marriage. — In Scotland, children 
born before marriage become legitimated by the subse- 
quent marriage of the same persons. This accords with 
the canon law, and also with the Roman law. " If any 
• ' person, without intending marriage, shall have children 



CHURCH LAWS. 



53 



" by a woman, and afterwards, by the dictates of affec- chap. hi. 

Sect. 8« 

£i tion, shall marry that woman, and have other children judicial 

powers in se- 

" by her, these latter children, and also the former, who cuiar things. 
" gave occasion to the legitimacy of those born afterwards, 
" shall be also legitimate." — (Lib. iii., tit. l,sec.2, "Jus- 
tinian Institutions.") In 1235, the church tried to obtain 
the sanction of the English parliament to a similar law for 
England ; " but all the earls and barons, with one voice, 
" replied, they would not change the English laws 
" which hitherto have been used and approved." — 
20th Henry III., cap. 9. 

The consequence is, Scotch estates pass to such heirs 
as may be born before the marriage of their parents 
(they being subsequently married) ; but the English 
estate, or title, would not pass to such heirs. In Scot- 
land, the same person is deemed legitimate; and in 
England regarded a bastard. 

As to the different laws of marriage. — By a long- 
established axiom of common and international law, the 
act which is good in the place where it is performed, is 
good in all other places. The lex loci applies to mar- 
riages celebrated abroad. But then, to prove this lex 
loci, you must prove, also, the law of the place in 
respect of domicile. Those laws are, in many instances, 
arbitrary, uncertain, and vague. Yet they must be 
determined, before the validity of the marriage can 
be settled, and, consequently, before succession to 
property can be decided. Scotland has its own laws 
of domicile ; America its laws; Rome, and other conti- 
nental states, their several and conflicting rules. They 



54 



THE HISTORY OF 



c ? A ?-p L swell the difficulties to a most painful, and in some 

Sect. 8. r 

judicial instances, ruinous extent. 

powers in se- 
cular- things. Now that men intermix with each other, irrespective 

of national limits, it seems highly desirable to simplify 

the laws by which that intercommunity, so essential to 

the good of the human race, may be advantageously 

sustained. Englishmen would then know the law with 

which they must comply. 

„/™v^ cts " The intermeddling " of ecclesiastics with secular 

oi iiicii ridge. o 

AJ) n 946. authority, has not been restricted to the creation of evils 
connected with the degrees of marriage. There were, 
for very many centuries, other mischiefs, springing from 
another department of the matrimonial canon law. 
At a very early period the church prescribed " forms of 
" espousals, and of laymen's betrothing." From this 
and other canons arose the custom of pre-contracts of 
marriage. These were called " spousals," and were of 
two kinds ; de futuro, or a pledge, from each of the 
parties, to marry at some future time ; and de verba 
prcesenti, or a contract of present marriage. Though 
not either of them were solemnised, they were, as 
contracts, held binding. The rule of common law 
here prevailed over canon law. The evils arising from 
the custom are thus described. 

mMe, The 32nd Henry VIII., cap. 38, charges it upon 
" the usurped power of the bishop of Rome," that it hath 
" always entangled and troubled the jurisdiction and 
" regal power of this realm, by making that unlawful 
" which, by God's Word, is lawful, both in marriages 
" and other things," so that ft many persons, after long 



CHURCH LAWS. 



55 



"continuance in matrimony solemnised," and children chap. in. 
born, " have, nevertheless, by an unjust law of the Judicial 
"bishop of Rome, been divorced, by proof of a pre- cuiar things. 
" contract" of marriage. Another act (2nd and 3rd A s ^ a ^ 
Edward VI., c. 23) says, " Under colour and pretence 
" of a contract made with another, which was very slen- 
il derly proved, and often surmised by the malice of the 
" party who desired to be dissolved from the marriage 
" which they liked not, they being so set upon pleasure 
" that, from the lightness of their nature, they over- 
" turned all they had done, so that, even from the very 
" church door and marriage feast, the man would 
" take another spouse, and the espouse take another 
$1 husband." — The ecclesiastical judge was, however, to 
try the question of pre-contract by ecclesiastical laws ; 
but after the 26th George II., cap. 33, no suit could be A s {; lt ;^' 3 
brought in ecclesiastical courts to compel the celebration 
of any marriage in facie ecclesia?, by reason of any con- 
tract of matrimony, whether per verba de prcesenti, or per 
verba de future- . Thus one evil was removed. Another 
mischief, however, still remains. It is marriage licences. 

There have been few invasions upon natural and Marriage 

A licences. 

social rights more odious than those which the church 
of Rome invented upon this subject. But, glaring as is 
one invasion, it remains to this day. The 28th Henry statute, 

J J A.D. 1536. 

VIII., cap. 16, enumerates the many usurpations "by 
" which the bishop of Rome, of his covetous and ambi- 
" tious mind, with the intent to enrich the see of Rome 
" did extort great sums of money from the people of 
"this realm." Among these usurpations, "licences" 



56 



THE HISTORY OF 



chap. in. are included. These, it is said, the people " have timo- 

Sect. 8. . ' 

judicial " rously and ignorantly accepted and used." They belong 

powers in se- 
cular things, to the same class as licences to eat flesh on a Friday ! 

The latter have been abolished; why, then, do mar- 
riage licences remain ? For no other reason than 
that which gave them birth ; they are " timorously and 
"ignorantly accepted and used" by the people, and 
yield a rich revenue to those who grant them, 
second mar- Second Marriages. — When any body of men are 

riages. ^ * 

intent upon one object, they will prosecute their purpose 
with such fixity of action as eventually to carry their 
point. The church of Rome aimed at one grand pur- 
pose — celibacy. She commenced her crusade against 
morality and natural law, by prohibiting her priests 
" to marry a widow, or a second time." Second mar- 
•vd' %bi rm S es were a l so interdicted among laymen. " Nor let 
" any priest be at a wedding where either the man or the 
" woman is married a second time, nor bless their con- 
" junction. Let such an one be so marked, as that it had 
" been better for him to have continued in chastity ; 
" yet the layman may, by the apostle's permission, 
" marry a second time, if his wife fail him. But the 
" canons forbid a blessing to it, and appoint a satisfaction 
" by such men." — See further on this subject, chap, iii., 
sec. 15, p. 77. 

Divorces. One of the many anomalies, introduced and per- 
petuated by the state having allowed two separate 
orders of judicature — the secular and the spiritual, is to 
be traced in the law of divorce. The spiritual court 
takes cognisance of causes of divorce for cruelty or 



CHURCH LAWS. 



57 



adultery ; and in cases of guilt proved, separates the chap. hi. 

Sect. 8. 

parties from bed and board. The bond of marriage, Judicial 

_ _ _ powers in se- 

however, remains, and can be broken only by an act 01 cuiar tiungs. 
parliament. The rich guilty parties are the only ones 
that can get relief — the poor, or middle ranks, go 
unredressed. But steps are in progress by which this 
acknowledged evil will eventually be done away. A 
royal commission, upon this matter, is prosecuting its 
inquiries, which, it is hoped, will be followed by such 
legislative enactments as shall place the whole question 
upon a more equitable principle ; conduce to greater 
morality ; and prevent the continuance of many per- 
sonal, domestic, and national wrongs. 

Wills. — Another most important secular affair, into ™> an( > 

A 7 testaments. 

which the baneful power of ecclesiastics has been 
admitted, relates to wills and testamentary matters. 
There is not a shadow of the spiritual* in testing the 

* " Testamentary matters have no real connexion with religion, and 
44 derive little illustration from laws divine. Spiritual jurisdiction in the 
44 distribution of estates is, however, expressly condemned (Luke xii. 14), 
" but, notwithstanding this, a false and heretical association between the 
1 ' wills of the dead and clerical functions is of remote antiquity and general 
" prevalence, 

" In the early ages of Christianity, the corruptions of the clergy were 
4 ' corrected by the canons of general councils ; but in later and darker 
" ages, the church became universally corrupt, the whole synodical 
4 4 authority of the western church became concentrated in the ecclesiastical 
" monarch, the Roman pontiff ; and he, when opposed by divine or posi- 
" tive laws, issued bulls and canons to suppress the one, and, under the 
M pretence of his law being a jus ex divino mioctum, to overrule the 
4 4 other. 

44 The early and purer canon law expressly forbade spiritual interference 
44 in testaments. The fourth council of Carthage, consisting of two 
41 hundred and fourteen bishops, and held in the year 398, ordained, 



58 



THE HISTORY OF 



chap. in. validity of a will. It is a deed, and ought to be placed 
judicial under the same legal regulations as affect all other 
cuiar things 6 deeds. So, indeed, the common law regards any will 
that disposes of real estate. Such a will is complete in 
itself : without probate, it is a sufficient title ; should it, 
however, dispose of personal property, the sanction of 
the bishop is required. But why ? If, in the nature 
of things, it be fitting any one should not obtain his 
father's watch until an ecclesiastic has granted probate, 
why is it not equally fitting that he should not inherit the 
estate, which the very same instrument placed at his 
disposal ? Why for this as well as the other bequest 
does not the same learned functionary, in due form, 
pronounce it probatus est? The anomaly may have 
arisen from the fact, that at the time the church first 
exercised testamentary jurisdiction, men could not, by 
will, dispose of their land. There has been time 
enough, however, since the 31st of Henry VIII., 
cap. 1, sec. 1 (by which land, as well as goods, may be 
devised), to clear the common law of the many scandals 
daily heaped upon it from this one cause ; as also to 

" ' Ut episcopus tuitionem testamentorum non suscipiet,' which appears 
" to be the earliest allusion to ecclesiastical interference in wills. This 
" canon is inserted in the monk Gratian's collection, authorised by Pope 
" Eugenius III., about 1150. 

" No subsequent canon, decretal, or bull, can be found, which gave to 
" the church any jurisdiction of probates or testaments." * * * 

" It is apprehended that there are several, out of the many decretals 
"and bulls addressed to the English clergy, which recognise their testa- 
" mentary jurisdiction ; but a legal source for ecclesiastical jurisdiction 
" over probates is not to be traced in either civil or canon law." — Fourth 
Report of Commissioners on Real Property, Appendix, page 9. 



CHURCH LAWS. 



59 



Canons, 
A.D. 734. 



prevent the still greater number of judicial wrongs chap.iii. 

Sect. 8. 

constantly inflicted, by the same means, upon every class. Judicial 

. powers in se- 

Ihe recital of all these wrongs would present a most cuiar things, 
painful list of evils.* How, it may be asked, has this 
monstrous injustice crept into its present rampant 
power? Just in the same way as the evils induced by 
the marriage laws. Ecclesiastics originally made every 
man's will, or were present when he made it. 

The first historic record we have of the interference 
of "the religious" (as the priesthood were called), in 
testamentary matters, is found in the canons of this 
period. The question was asked, " whether a priest 
"or a deacon may be witnesses of the last words of 
" dying men concerning their estates?" The reply is 
— " Let him take with him the two or three, by whose 
" testimony every word may be established, lest the 
" kindred of the deceased, out of covetousness, con- 
" tradict what is said by the ecclesiastics." 

In that rude age men could very rarely read or 
write; wills were, therefore, very often nuncupative, 
or by word of mouth : they were deferred being made 
till the last moment. At the side of the dying man 
stood the priest, in one hand offering extreme unction; 
by the other, he held the gate of heaven midway open ; 
into the ear of the dying man the ecclesiastic whispered 
those all-ominous words, " the portion of the church." 
No wonder that that portion should be so great. So 
long as men believed that " masses for the dead" were 

* The reader will find illustrations in the " History and Power of 
Ecclesiastical Courts," by the author. 



60 



THE HISTORY OF 



chap. in. of any service, so long would " kings,- earls, barons, and 
judicial " other nobles," leave a portion of their goods to the 

powers in s e- _ , _ 1 ■ . 

cuiar things, church. It was a cheap and easy way oi securing an 
escape from purgatory, and a place in paradise. 

Five years after the church had interdicted physi- 
cians administering medicine, until the priest had 
given spiritual cure (chap, iii., page 41), it stretched its 
power still further by declaring a provincial con- 
A°ixi236. stitution, in which it is said, " We charge that laymen 
" be often forbid to make their wills ivithout the presence 
" of a parish priest ; as they desire that their wills be 
" fulfilled. We also forbid priests to make their wills 
" by a lay hand." 

The bold Boniface openly declared, what had pre- 
a d. i26i. viously been managed in secret. " Because, when 
*' laymen die intestate, the lords of the fee do not 
" permit their moveables to be distributed piously, for 
" the benefit of the deceased, according to the disposi- 
" tion of the ordinaries : — Let them be restrained ; at 
" least as to that portion which it concerns the deceased 
" to have distributed for pious uses, freely by the 
" ordinaries of the places ; and we ordain that the 
" church have her right out of the estate of the 
" deceased." 

Two facts become evident from this canon. The 
bishop distributed the effects of intestates; and, next, 
the church shared in the estate of the deceased. She 
asserted "her right." The amount depended upon 
custom. Lynwood says, it sometimes was the whole 
personal estate, when there were neither wife, children, 



CHURCH LAWS. 



61 



nor parents ; at other times, it was half, when there chap. m. 
was only a wife surviving ; sometimes a third, when Jlldicia] 

. powers in se- 

there were wife and children. cuiartMngs. 

The bishop was sole distributor of intestates' estates. 
This was a right conceded by statute law. The 13th 
Edw. I., (Westminster, cap. 19), declares " the goods /jjj^ggg. 
" of a person dying intestate come to the ordinary to be 
" disposed of." The bishop was bound by this law to 
answer the debts of the deceased, as were executors. 
Previously, bishoj3S took their portion " for the soul of 
" the dead," even if it left creditors unpaid. 

This portion for the soul was a prolific source of 
wealth to the church. So fully had the national mind 
become impregnated with the monstrous error, that 
departed souls were in the priests' hands, that the state, 
by law, sanctioned the delusion. It even laid hold of 
the humane sympathies ordinarily felt towards the 
mentally afflicted, and provided that "the residue of the /-p 1 ^ 
" lands and tenements of a lunatic should be distributed 
" for his soul by the advice of the ordinary," 17th 
Edw. II., cap. 10. This premium to a system of pious 
fraud was by an adroit priesthood turned to their own 
aggrandisement, at the expense of every one else. 
" Ordinaries do aggrieve" others " by difficulties of A ^ n g^ 8 
" their own making, in order to extort money on 
" account of the insinuation of wills, or the administra- 
" tion of goods." Henceforth, no fee shall be demanded 
for " insinuation of the testament of a poor man, whose 
" goods do not exceed 100 shillings." This standard is 
in present force. £5 constitutes bona notabilia. 



62 



THE HISTORY OF 



chap. in. The next stei3 taken by the church, was an addition 
judicial to the power of making, or being present at the making 

powers in se- .... 

cuiar things, of every man's will ; — viz., the right of proving it also. 

In the constitutions of Stratford, the church com- 
aSTis43. plained — " Obstructions are thrown in the way of the 
" free making and execution of testaments, against the 
" laws and customs of the church hitherto practised, 
" the offence of the Divine Majesty, and the evident 
" injury of ecclesiastical right." 

This canon, for the first time, claimed the right of 
probation of testaments, " unless some lay-fee chanced 
" to be devised in such testaments ;" i. e., if freehold 
estates were devised, the testament, so far as related to 
this devise, did not require probate. The bishop 
yielded to the baron. Of him, however, grievous com- 
plaint was made. " The great men and secular poten- 
" tates obstruct the prelates in their office of proving 
" testaments in places belonging to their lordships ; 
" and do usurp to themselves a jurisdiction in these 
" points." 

Secular duties ought, surely, to be performed by 
secular men. It is a manifest usurpation for spiritual 
persons to perform such civil functions. Would they 
tolerate secular men intermeddling with their spiritual 
duties ? Why, then, should priests turn lawyers ? 

The frauds — the peculation — the injuries arising out 
of this state of things, eventually induced the state to 
AJD at i357. interfere. By the 31st Edw. III., cap. 11, Westmin- 
ster, " ordinaries were obliged to depute the next of kin 
" of the deceased intestate to administer his goods." 



CHURCH LAWS. 



63 



This act was the first recognition of the bishop's power C] | A] P- in. 
to grant administration of intestates' estates. It contains JudiciaI 

rtii • ini powers in se- 

this remarkable provision: — " bucn deputies shall be cuiar tilings. 
" charged to administer, and dispend for the soul of the 
" dead," i. e., pay the dead man's portion to the church. 
This act made three important alterations. Com- 
pulsion upon the bishop to grant administration — 
before it was at his option ; restriction as to whom it 
was granted — to the next of kin, rather than to himself ; 
and augmentation of power over the goods of the 
deceased, although it lessened the personal interest of 
the bishop in them. There was, however, one most 
remarkable omission. It made no alteration as to the 
actual distribution. This was left at the discretion of 
the bishop, who was guided by custom. Nor was it until 
the times of Charles II. (22nd and 23rd Chas. II., 
cap. 10), and 1st James II. (cap. 17), that the dis- 
tribution of intestates' estates became fixed by statute 
law. 

These acts, however, still left the distribution with 
the bishop. So that a person claiming a legacy, or a 
share in an intestate's property, must still apply to the 
bishop's court for an inventory of effects. That inven- 
tory he must carry to the court of chancery, which will 
compel the executor or administrator to execute the 
decree of the ecclesiastical judge. There are thus two 
systems of law, and two law-suits required for one and 
the same cause. This is one of the many daily evils 
which arise from keeping up two distinct branches of 
jurisprudence. 



64 



THE HISTORY OF 



chap. in. The incipient reformation in the time of Edward VI. 
judicial gave promise of removing this long-endured national 

powers in se- 
cular things, evil. The 1st Edward VI., cap. 2, sec. 3, says — 

A S D at i547 " Whereas tne archbishops, bishops, and other 

" spiritual persons in this realm, do use process in their 

" own names and in such form as was used in the time 

" of the usurped power of the bishop of Rome, con- 

" trary to the form and process of the common law : 

" Be it enacted, that all causes of instance between 

" party and party, probates of testaments, administrations 

" and inventory, shall be made in the name and with 

"the style of the king, as in writs original or judicial 

" at the common law." 

But though the ice was now broken, it was not melted. 
Popery and ecclesiastical processes were restored by 
Mary. This act of Edward was repealed by the 1 st Mary, 
c. 2. (sess. 2nd), which in its turn was set aside by the 1st 
James, cap. 25, sec. 48. Had this been all, the act of 
Edward would have revived. But there had been an 
intervening statute (1st Philip and Mary, cap. 8, sec. 54), 
which placed "the ecclesiastical jurisdiction in the same 
" state for process of suits, and as large as the said 
"jurisdiction was in the 20th year of Henry VIII." 

This intervening statute had been overlooked in the 
repealing statute of James. Had it been included, we 
should now have been wholly relieved from the 
anomalies and wrongs induced by this acknowledged 
remnant " of the usurped power of the bishop of 
% Borne." Never was the guilty supineness of a nation 
more clearly attested than in the profound apathy 



CHURCH LAWS. 



65 



nearly all ranks evince upon the subject of testamentary chap. hi. 

jurisdiction. Judicial 

powers in se- 
cular things. 

SECTION IX. — TITHES. 

There are three sorts of tithes : predial, or such as 
arise immecfiately from the ground — as hay, grain of 
all sorts, wood, fruits, and herbs; mixed, or things 
nourished by the ground, by means of goods depastured 
thereupon, or things nourished with the fruits thereof, 
as colts, calves, lambs, chickens, milk, cheese, eggs ; 
and personal, or profits arising from labour and industry. 

They are divided into great and small. Great tithes 
are corn, hay, and wood ; small, are the predial tithes 
of other kinds, together with the mixed and personal. 

Tithes were all orieinallv free offerings made at the origin of 

° J & tithes. 

altar or at collections ; by charters, or deeds of gift. 
Offa (in 794), king of Mercia, made a law (it is said) by 
which he gave to the church the tithes of all his king- 
dom, which, the historian tells us, was done to expiate 
for the death of Ethelbert, king of the East Angles, 
whom, in the preceding year, he had caused basely to 
be murdered. # 

Tithes are frequently mentioned in the early canons. 
We find it ordained, "that the priests themselves canons, 

r A.D. 740. 

" receive the tithes from the people, and keep a written 
" account of the names of all that have paid them ; 
" and divide them in the presence of such as fear God Early division 

A or appropria- 

" according to canonical authority ; and choose the first tion 

* Burn (Tithes). 
F 



66 



THE HISTORY OF 



C] s^t" 9 IL " P art ** or t ^ ie ornamer)t of tne church, and distribute 
Tithes. u the second part to the use of the poor and strangers 
" with their own hands, with mercy and all humility ; 
" and let the priests reserve the third part to themselves.'' 
And this continued to be the order of distribution for 
ages. 

KSjES. " The tentl1 sheaf is due t0 God of a11 corn ' and 
" therefore to be paid ; the tenth colt, calf, cheese, 

" lamb, fleece, butter, pig ; the tenth of the profit of 
" bees, meadow, waters, mills, parks, warrens, fisheries, 
" osiers, gardens, and negotiations" or labour. The 
canon goes on to say, " that many detained these tithes 
" by instinct of the devil ; and priests, being rich and 
" negligent, did not care to be at the pains to get them, 
"because they had sufficient maintenance; for there 
" are now three or four churches in many places where 
" then [in Augustine's time] there was but one ; and 
" thus tithes began to be diminished." 
opposition to. It appears that opposition has always, more or less, 
been raised against the payment and collection of tithes. 
In a canon of 1328, it is stated that they to whom they 
belonged, or their servants, were "hindered in their 
" ingress and egress to and from their farms from 
"which the tithes arise, in order to their collecting, 
" keeping, and carrying them away ; and others 
" damaged the tithes, unless gloves or shoes were first 
" given or promised them." The greater excommunica- 
tion was the penalty for these offences. The Statute 
Book contains evidence of the contentions induced 
from this source. The 27th Henry VIII., cap. 20, 



CHURCH LAWS. 



67 



states, that " divers numbers of evil-disposed persons, CI |^- J 11 * 
" having no respect to their duties to Almighty God, Tithes. 
" had withheld, in some places, the whole, and in others, 
" the greater part, of their tithes, as well personal as 
" predial." The ecclesiastical laws were, therefore, to 
be enforced against them ; and upon information being- 
given by the officers of spiritual courts to the magis- 
trates, they were to attach and imprison the offender 
until he " gave due obedience to the sentence of the 
" ecclesiastical court." 

There is one remarkable clause in this act. It is 
sec. 4, and provides, that " it shall take effect, only until 
" such time" as a new code of ecclesiastical laws shall 
be provided ; after which, tithes " shall be paid accord - 
" ing to such [new] laws, and none otherwise." This 
new code has not even yet appeared. But, instead of 
it, another act was, within six years, passed, by which 
" the ecclesiastical laws," as then existing, without the 
slightest reference to any alteration having been made, 
or even then contemplated, were still to be executed by 
ecclesiastical officers; who were again armed with 
authority to call upon any one or two justices of the 
peace to commit " the person refusing to pay," to prison, 
there to remain " until he performed the sentence of the 
"ecclesiastical court." — 32nd Henry VIII., cap. 7, 
sec. 4, 

But though this act put the promise given in the 
former one to sleep, it made a mighty alteration in the 
character of tithes. It had always been contended that 
they were " spiritual possessions ; " and, as such, were 

f 2 



68 



THE HISTORY OF 



chap. in. to be treated as sacred things. Had the assumption 



Sect 

Tithes - been well founded, a monstrous anomaly had been for 
ages perpetuated. Lay men, as well as ecclesiastics, 
had held tithes. The 32nd Henry VIII., cap. 7, sec. 1, 
states, that " divers lay persons had parsonages, 
" vicarages, and tithes, to them and their heirs ; and that, 
" as such lay persons, they could neither at common 
" law^nor in any ecclesiastical court, sue for the wrongful 
" withholding of tithes." It then goes on, in sec. 7, to 
declare, " that in all cases, any person might have an 
" estate of inheritance, freehold, term-right or interest in 
" any parsonage, vicarage, portion, pension, tithes, obla- 

" tions, or other spiritual profit ; which now be, or which 

n&dJ ittdiBi «90£9|[ oifr to asoiiaur 9flj t Ulx.*i9Dfru .ssiin 
" hereafter shall be, made temporal, or admitted to be in 

" temporal hands and lay uses" These words changed 
the aspect of the whole question. Henceforth, tithes 
became real property; and any wrong done to the 
possessor, his heirs, wife, or others, was to be remedied 
in the king's temporal courts, according to writs origi- 
nal, although no such writs out of the court of chancery 
" have heretofore proceeded or been awarded." 

The reader will recollect, also, that the 27th of Henry 
states, that tithes " are due to God and holy church ; " 
in other words, are "spiritual things." But in the 
32nd, (the last above referred to,) tithes and oblations 
are said to be commonly due to the owners, proprietors, 
" and possessors" — sec. 1. They are therefore now 
civil rights. 

statute, Several things, that had been omitted in these two 
acts, were provided for by the 2nd and 3rd Edward 

fSbflJSl li9£lJ ILB >j D9JC[iII9X9 e D9Vl088lb 919W e'5Vl { bV<iti£LOlii 



CHURCH LAWS 



69 



CHAP. HI. 
Sect. 9. 



Tithes. 



VI., cap. 13. Among the rest, personal tithes were 
re-enforced by " every person exercising merchandises, 
" bargaining, and selling clothing, handicraft, or other 
" art or faculty " being required " to pay, at Easter, the 
" tenth part of his clear gains," after deducting his ex- 
penses. But this conld only be enforced " in such places 
" as within these forty years, {i.e., before the act passed,) 
" had been accustomed to pay such personal tithes." 

Small tithes, or those under forty shillings, were reco- 
verable by the 7th and 8th Wm. III., cap. 6, before a,d.1695. 
the magistrates. And by another act, cap. 34, of the 
same reign, if Quakers refused to pay tithes, or church 
rates, under £10, the justices of the peace, rather than 
the ecclesiastical courts, were to determine the matter. 

By the 3rd and 4th Anne, cap. 18, (1704,) the 7th of 
^yilliam was made perpetual as to small tithes ; and by 
the 53rd Geo. III., c. 127, sec. 4, the amount for which a.d. 1813. 
they can be summoned was raised from £10 to £50. 
This last act declares, that u no action shall be brought 
" for the not setting out tithes — nor any action brought 
" in any court of equity, or in any ecclesiastical court, 
" unless within six years from the time when they 
" became due." 

«»rfi nr "tricT s^fllHJ LsniniCf 3 91B 8D*IOW 19QJ0 XII 

A large portion of the church lands which be- Tithe-free. 

longed to the monastic institutions were discharged 

from paying tithes, especially such as had attached 

to them any parsonage ; and the principle was, 

these parties could not pay tithes to themselves. 

The 31st Henry YIIL, cap. 13, by which the greater 

monasteries were dissolved, exempted " all their lands, 



70 



THE HISTORY OF 



chap. ni. " when they came into the possession of the king, or 
" other persons, from the payment of tithes, in as 
" large and ample a manner as the abbots, priors, and 
" other ecclesiastical governors held and enjoyed" 
them, — sec. 21. The omission of this clause in other 
statutes dissolving the lesser monasteries (or those 
under £200 annually) renders their lands still subject 
to the payment of tithes. 

Tithes m the A variety of acts have passed as to the citizens of 

city of J 1 

London. London paying tithes. After the great fire in 1666, 
the matter was settled by 22nd and 23rd Charles II., 
cap. 15, which fixed a certain amount of money to be 
paid in lieu of tithes, by an assessment in each parish, 
upon all houses, cellars, wharfs, &c. This assessment 
was to be made by the alderman and a number of 
parishioners of each ward ; and was to be in the most 
equal way that the assessors could make ; which 
assessment was to be finished before the 24th July, 
1671. By this rule, the payments have continued to 
be made ever since. 

commutation The many and grievous mischiefs which constantly 

of tithes. J ° J 

sprung out of the system, at length induced the legis- 
lature to provide a remedy. The 6th and 7th Wm. 
IV., cap. 71, created a board of commissioners, who 
are clothed with certain powers, which have in a 
great measure superseded the legal vexations and 
wrongs to which nearly all parties were before exposed. 
The great principle of this remedial measure is, that it 
fixes the yearly value of tithes, by means of the average 
price of wheat, barley, and oats, during the preceding 



CHURCH LAWS. 



seven years. This forms a rent-charge upon the land, chap. in. 
and is paid instead of tithes. A variety of minor tithes, 
arrangements obtained the sanction of the legislature, 
by which such agreements may be made between 
respective parties, as will go far to prevent the necessity 
of angry and often ruinous law-suits, both ecclesiastical 
and civil. Another valuable measure was soon after 
passed, by which these rent-charges may be redeemed ; 
the produce of which is to be applied by the commis- 
sioners to the governors of " Queen Anne's Bounty," 
9th and 10th Vict., cap. 73. 



SECTION X. — USURY* 

Very ancient canons denounce usury ; or the taking- 
interest for money. " We have forbidden usury ; 
" because where there is gain, there is loss ; gain in 
" the coffers, loss in the conscience." 

King Edward the Confessor also forbade usurers to a.d. iom. 
dwell anywhere in his kingdom ; and if any were con- 
victed of exacting usury, he was deprived of his estate, 
and deemed an outlaw. 

Edward III. (15th Edw. III., cap. 5), declared, aj*"*^ 
" that the king and his heirs shall have the cognizance 
" of the usurers dead ; and the ordinaries of the holy 
" church the cognizance of usurers in life, as to them 
" appertaineth to make composition by the censures 
" of holy church, for the sin ; and to make restitution 
" of the usuries taken against the laws of holy church." 

The 3rd Henry VII., cap. 5, "reserves to the a.d.1487. 



72 



THE HISTORY OF 



chap. in. " church" (the punishment of a fine of £100 notwith- 

Sect.10. v r 

Usury . standing) "the correction of their souls according* to 
" the laws of the church." 
ad. 1623. The 21st James I., cap. 27, disallows the use of 
usury " in point of religion and conscience." 

If the design of these laws was to secure honesty, we 
respect the intention ; if it were to exert power, we 
cannot but despise the arrogance. The same thing- 
applies to another department of the labours of the 
church. 

(la ni bifiq 9d oi 9isw ri aeatrsno /ilbJtsd 10I e9nM 

SECTION XI. — WEIGHTS AND MEASURES. 

A C i5 n 925 " I* does °f r ig nt concern the bishop not to permit 
" any fraud by unjust measure or weight ; but the 
" weight and measure of every borough shall be rightly 
" adjusted according to what he says. 

" And it is right that one measuring rod be not longer 
"than another, but all adjusted to the bishop's measure. 
" If there be any dispute, let the bishop decide it." 
' oldoa eiift qys& 9w wjs! 9in£8 9ifo ni bak *\tehdO Jj 

An implicit regard to historic truth demands, that 
before we close this analysis of the interference of 
ecclesiastics with secular immunities, a distinct reference 
should be made to the early and continuous efforts 
made by the church, in its corporate character, to 
improve the condition of the serfs, 
dfmjrio 9riVio i9Woq touiJarb 9ilt efiw/grmifr 9no on ni 

SECTION XII. ENGLISH SLAVES. 

\d°693. ^ n ear ty canon imposed such penalties upon a man 
who bought a slave with the view of " sending him 



CHURCH LAWS. 73 

" over sea," as amounted to a practical interdict of the chap. in. 



custom. onnR pFhor «i English 

slctV6S. 

" If a man give freedom to a slave at the altar, let a d 696. 
" his family be free ; let him take his liberty ; have his 
" goods and protection for all that belong to him." 

" When any bishop passes out of the world, let every a.d. 8i6. 
" Englishman of his, who has been made a slave in his 
" days, be set at liberty ; and let every prelate 
" (succeeding) set at liberty three slaves, and give three 
" shillings to every one of them." 

Fines for certain offences " were to be paid in living A . D> 877 . 
" stock ; but let none part with a man on that account." 
But for this canon, slaves would have been sold as 
cattle. 

We have this decree of the king: — " I, Ethelstan, a.d. 925. 
" king, declare to all my reeves, with advice of arch- 
" bishops, bishops, and servants of God, that it is my 
" will, that ye set at liberty some one that has, for his 
" crimes, been condemned to slavery, for the mercies of 
" Christ." And in the same law we have this noble 
principle avowed : — " The slave and the freeman are 
" equally dear to the Lord God, who bought them, 
" and bought them all with the same price." 
etaoita Buosjaliaoo bixs ^Itbs odi oi sfjjsm ad bliiori^ 

SECTION XIII. TAXATION. 

In no one thing was the distinct power of the church 
so marked, as in the right to tax itself. The state, for 
centuries, never imposed a tax upon ecclesiastical per- 
sons, until after they had themselves resolved so to do. 



74 



THE HISTORY OF 



C sett l™' * n ver y ear ty periods, Saxon monarchs exempted the 
Taxation, church from any share of the public burdens. Thus 
we read — 

£jum. " ^» Wihtred, an earthly king, incited by the king of 
" heaven, have learned that no layman ought, of right, 
" to go to any church, or to demand any tribute from it ; 
ff therefore we decree, and in the name of Almighty 
" God and all the saints, we forbid all kings, our 
" successors, and all laymen, for ever, all dominion 
" over the churches, and all things belonging to them." 

a.d. 696. Again — " A freedom from taxes belongs to the 
" church ; and let men pray for the king and honour 
" him of their own accord, without any compulsory 
" law." 

a.d 943. And again — " We charge and command that the holy 
" church of God, which is founded first in the blood 
" of Christ, and made a fair spouse by the multitude of 
" believers, be not invaded by the violence of wicked 
" men. And let it be allowed to none to lay taxes 
" upon the church of God ; because the son's of the 
" church, that is, the sons of God, are free from all 
earthly tribute in every kingdom. They who disdain 
" to obey the rules of the church's discipline, are more 
" bold than the soldiers who crucified Christ — for the 
" church hath power of binding and loosing." 

During many centuries the church continued free 
from all taxation imposed by the state. She, however, 
was accustomed to tax herself in convocation, which, 
for a long time, was the only authority under which the 
tax could be levied on the clergy. The first inroad 



CHURCH LAWS. 



75 



made upon this privilege, was by the state conde- e |^ , 1 ™ 

scending to confirm the taxes so levied. These acts Taxation. 

continued to be passed, until the time of Charles II. 

The 29th and 30th of Charles, cap. 1, fixed a general 

poll-tax ; "but by a private agreement between Sheldon, 

" archbishop of Canterbury, and Clarendon, the lord 

" chancellor, it was settled that the clergy should 

" silently waive the privilege of taxing their own body, 

" and submit to be included in the money bills prepared 

" by the commons. And this hath made convocations 

" unnecessary to the Crown and inconsiderable in them- 

" selves." — Burn ( Convocation.) 



SECTION XIV. BURIAL. 

It is the obvious duty of the living to bury their dead. 
Among the Jews, " to be deprived of burial was 
" thought one of the greatest dishonours. It was denied 
" to none, not even to enemies ; but it was withheld 
" from self-murderers till after sunset." * 

At common law, every one is entitled to interment 
in the churchyard. It is a constitutional right, alike 
suggested by humanity and secured by immemorial 
prescription. By ecclesiastical law, the right to Chris- 
tian burial has been taken away, for a variety of causes. 
They are as follow : — 

" He that relinquisheth his wife, and taketh another Canons. 

u ' AD. 963 

u woman, breaketh wedlock. Let none of those rights 

* Calmet, " Burial." 



2V/AJ HOJIUHO 
76 THE HISTORY OF 

in <iaho tPRo at >l btifi Hiifrf^oO 8*f9jBdoiM -i'S nJ' fooiiud ii99d bfiif 
chap. in. " that belong: to Christians be allowed him, either during 

Sect. 14. to > & 

Buria i. " his life or at his death. Let the kindred that were 

" present at the contract suffer the same doom." 
Canons, " Let him that takes a false oath, when he dies, not 

A.I). 925. 

"lie in a consecrated churchyard." 
a.d. 950. 1^ an y m an do take a wife that is related to hiui 

" within the fourth degree, or any spiritual relation, let 

" him forfeit holy sepulture." 
a.d. 960. " Let every man be expert at paternoster et credo, 

" if he desires to lie in holy ground." 
a.d. ii38. " Let him be struck with anathema that kills a clerk, 

" or that imprisons or lays wicked hands on such. If 

" he die impenitent, let his body remain unburied." 

ad 1343 " We, by the deliberate advice of this council, do 

rarfQl bsinsb, ebnoj . aiblido .H9XIJ symt 
" will, that all and singular within our province who 

" alienate their goods, or so great a share of them that 

" the churches (to the reparation whereof, as also of 

" the books and ornaments, they were obliged) are 

" deprived, be for the grievousness of their excess, them- 

% " selves deprived of ecclesiastical sepulture." 

a.d. 1378. " Let men be admonished to communicate at Easter, 

" Pentecost, and Christmas. Whoever does not receive 

" the sacrament of the eucharist at Easter (unless he 

anrrlT fftft'^'S f It I W Jirf Sii.0 U (J »39QflL9ftO JlISt'199 bsOfliKMI 

" think he ought to abstain by the advice of the priest), 
" let him be forbidden entrance into the church while 
" he is alive, and deprived of Christian burial when 
" dead " 

These laws supplied many painful exhibitions of reli- 
gious intolerance. In 1305, the archbishop sent his 
mandate to dig up the body of an excommunicate that 



CHURCH LAWS. 



77 



had been buried in St. Michael's, Cornhill,and "to cast chap in. 

Sect - u - 

" it into any prophane place." Burial. 

None of the above canons have been repealed. 
Henry the Eighth's parliament might well declare the 
canons "overmuch onerous," and "contrary to the 
" statutes and customs of this country." The Book of 
Common Prayer now in use, and of legal force, adds to 
the gloomy catalogue, by declaring that " persons un- 
" baptised, or that lay violent hands on themselves, or 
" that do not partake of the Lord's supper at Christmas 
" or Easter," shall not be buried with Christian rites. 
The remedy for the violation of the consciences of some 
of the clergy, if compelled to bury the unbaptised — as 
also relief for those who regard it as an intolerance, to 
have their children or friends denied Christian burial — 
is to follow the practice of the Scotch, and hold a 
solemn service in the house, prior to carrying the body 
to the grave. 

SECTION XV. INFLICTION OF DEATH. 

In the present day, the civil power only can deprive 
a subject of life. In ancient times, the church pro- 
nounced certain offences punishable with death. Thus, 
" If a far-comer, or stranger, go out of the road, and A C £ U °5J 
" neither scream nor blow a horn, he is to be con- 
" demned for a thief, either to be put to death or 
" ransomed." 

But the height of cruelty ever legalised was a law 
at first made by the church, and afterwards ratified by 



78 



THE HISTORY OF 



chap.jil the English parliament, relative to a widower marrying 
infliction of a second time. By the 4th Edw. I., cap. 5, and the 18th 

death. 

statutes Edw. III., stat. 3, cap. 2, " the man who married two 

A.D. 1276, 

and 1344. " wives or one widow " was to be hanged. " Concerning 
" men twice married, called bigami, whom the bishop of 
" Rome, by a constitution made at the council of 
" Lyons, hath excluded from all clerks' privilege, 
" whereupon certain prelates (when such persons have 
" been attainted for felons) have prayed to have them 
" delivered as clerks, which were made bigami before 
" the same constitution ; it is agreed and declared, 
" before the king and his council, that the same con- 
" stitution shall be understood in this wise — that 
" whether they were bigami before the same constitution, 
" or after, they shall not, from henceforth, be delivered 
" to the prelates, but justice shall be executed upon 
" them,* as upon other lay people." These statutes 
are not to be confounded with that of the 1st James, 
cap. 11, which made it felony for a man to marry a 
second time during the life-time of his wife. This was 
moral justice — the other laws were legal turpitude. 
The first referred to, not only constituted that an 
offence which in itself might be a virtue ; but took a 
retrospective as well as a prospective operation. Hap- 

A S t> a 'i828. pily, the whole have ceased to be law. The 9th Geo. 

* And that justice was executed, appears from the constitution of 
Archbishop Winchelsey, in 1308, wherein is this complaint : — " Secular 
" judges stick not to hang clerks, although the cognizance of bigamy 
" ought to belong to the ecclesiastical court." Notable conflict ! as to 
who should turn hangman — the bishop or the king ? 



CHURCH LAWS. 



79 



IV.. cap. 31, sec. 1, repealed those of Edw. I. and CHAP - ni. 

L 1 Sect. 15. 

Edw. III. ; as also the modification of both, by that of infliction of 
Edw. VI., cap. 12, sec. 16, which gave benefit of 
clergy to such bigamists. These monuments of papal 
domination, under the influence of a foreign canon law, 
sanctioned by the English legislature, were at first 
practically carried into effect, and afterwards permitted 
gradually to slumber. They have, at length, after an 
existence of five centuries and a half, received their 
final death-blow. 



SECTION XVI. PURGATION. 

One of the most dangerous powers possessed by the 
church, was that of requiring a person suspected of any 
crime to clear himself of the imputation, by his own 
oath of innocence, and the oaths of at least twelve of 
his neighbours, that they believed him upon his oath. 
These were called compurgators; six of whom were 
required in a charge of fornication, and twelve upon a 
charge of adultery. The evils of this system are thus 
stated in their own law : — " The officials of bishops, canons, 

r A.D.1195, 

" archdeacons, and others, by a contrived malice, do and 1343 - 

" assign such places to clerks and laieks as offer to 

" purge themselves, as are in the remoter parts of their 

" jurisdiction, where victuals can hardly be purchased, 

" and an excessive number of compurgators, and so 

" make the innocent compound for money to avoid 

" fatigues and expences, insomuch that some choose to 

" confess and do penance for crimes which they never 



80 



THE HISTORY OF 



C sett P 'i6 IL " committed." The statute is very strong in its con- 
Purgation. demnation of this iniquitous system of entrapping inno- 
A S D at i64o. cent, and augmenting the sin of guilty men. The star 
chamber of Henry VII. and Henry VIII., as also the 
high court of commission established by the 1st of 
Elizabeth, cap. 1, had each put an accused party 
upon his purgation, by the administration of the oath ex 
officio. Both courts were swept away by the 16th 
Charles I., caps. 10 and 11 ; and by the 13th Charles 
II., cap. 12, sec. 4, " the oath ex officio, or any oath, 
" whereby any person to whom the same is tendered or 
" administered, may be charged, or compelled to con- 
" fess, or accuse, or to purge him or herself of any 
" criminal matter or thing," is declared unlawful for 
" any archbishop, or other person exercising spiritual 
" or ecclesiastical jurisdiction, to tender or administer." 
This restriction of arbitrary power, Bishop Gibson 
(vol. ii. p. 1689) gravely laments, as having " restrained 
" and fettered the church in the exercise of her disci- 
" pline;" and which, he says, will be "matter of grief 
" to all good men, to all who are lovers of virtue and 
" religion, and have a concern for the honour of God !" 
Judge Foster, however, justified "the legislature in 
" disarming the church of this engine of canonical 
" oppression." — (See his " Examination of the Scheme 
" of Church Power," page 53.) 



CHURCH LAWS. 



81 



CHAPTER IV. 

CHURCH LAWS IN RELATION TO THINGS SPIRITUAL, 

§ 1. Extirpation of Anglo-Saxon Heathenism, by canon laws. 

§ 2. Legal establishment of Christianity and its incorporation with 

monarchy, first by cburch authority, and afterwards by common 

law. 

§ 3. Church unity — Fixed by a General Assembly, or Parliament. 

Diversity of opinion and practice ; interdicted, first by censures — 

by fines — by death. 
Original opposers of church authority in England ; Lollards, acts 

respecting them. 

The Six Articles Act of Henry VIII. ; originated from convocation ; 

sanctioned by the state. 
Acts of Mary, Elizabeth, and Edward VI. 
§ 4. Religious opi?iio?is — penal statutes against. 

Tabular Statement of all the laws, for 273 years, in respect of 

Nonconformists, Papists, and Episcopalians ; with the penalties ; 

and whether repealed or in force. 
Summary as to tbe laws of toleration and religious opinions. 
§ 5. The priesthood — 
Order of. 
Celibacy of. 

Ordination of, by bishops and ministers. 

Roman Catholic ordination declared valid by law ; as also Moravian 

episcopal ordination. 
Qualifications for ordination. 

Assumed concurrence of the people in ordination, as stated in the 

Book of Common Prayer. 
Conformity of priests — powers of the bishops, requiring conformity 

of opinions and rites. 
Renunciation of orders. 
Deprivation of orders. 



82 



THE HISTORY OF 



CHAP. IV. § 6. Religious ceremonies— 

Baptism essential to salvation. 

Fasts — anointing — consecration of bread and wine, of churches. 
Confession — confirmation. 
Burial rites. 
§ 7. Uniformity — 

Diversity of liturgical forms of worship. 
First Act of Uniformity. 
Opposed by force at the time of worship. 
Sacramental test as to corporations. 

Toleration Act ; or the surrender of a coerced unity of religious 
opinions and worship. 
§ 8. Exactions — offerings, originally, the only payments. 

Instance (from canon) of evasion. 

Compulsory payments — when first made. 
§ 9. Discipline — Legal process over the laity and priests. 

Correction (causes of). 

Excommunication. 



The essential element of piety is sympathy with the 
Divine government. Severed from this, creeds become 
impositions upon credulity ; ceremonies converted into 
religious frauds ; and conscience itself prostrated before 
despotism. The proof of sympathy lies in obedience to 
the great commands — "Thou shalt love the Lord thy 
God with all thy heart, and thy neighbour as thyself." 
The Divine expositor declared that upon these " hang all 
" the law and the prophets." In other words, they are 
the compendium of the revelation of all ages, and 
form the one unvarying and eternal rule of God's 
moral government. 

The church of God has been entrusted with the 
enunciation of this rule ; and only with its enunciation. 



CHURCH LAWS. 



83 



It is not, therefore, competent for any body of men, chap. iv. 
bow numerous or how wise soever they may be, to 
assume an original jurisdiction in religion. They are 
servants, not sovereigns, in the "house of God;" 
and what is more, they are bound to observe the same 
conduct and to evince the same principles in their collec- 
tive, as in their individual character. 

This rule must, therefore, constitute the standard by 
which every professed church, as well as every professed 
Christian, is to be tried. Romanism, with its favourite 
assumption of oneness ; Protestantism, with its admitted 
diversity, must stand or fall, just as this law shall be 
proved to have been obeyed or violated. Guided by 
its ever-attractive beauty, and all-commanding authority, 
we proceed to an analysis of those acts of legislation 
which the church has at different periods adopted, in 
respect of things spiritual. 



SECTION I. — EXTIRPATION OF ANGLO-SAXON HEATHENISM. 

As might be expected, the church established by 
Augustine had for its primary object the extirpation 
of heathenism. 

Ancient canons describe the paganism of our Ane*lo- a.d. 

r ° to 696, 740, &c. 

Saxon progenitors to have consisted " in offerings to the 
" devil ; " " in wearing garments like those of the Gen- 
" tiles ; " " maiming horses, by slitting their nostrils, 
" fastening their ears together, making them deaf, 
" cutting off their tails, and eating their flesh ; " " blood- 
" letting ; " " divination, to drive away mischief, or to 

g 2 



84 



THE HISTORY OF 



chap. iv. " make discovery of crimes committed; " "the worship 
Extirpation " °f fountains ; " " soothsaying* ; " " false worship of 

of Anglo- _ 

Saxon hea- groves, elder, and many trees of divers sorts, and 

tlienisra. 

" stones." 

Priests were enjoined to extirpate all these pagan 
rites ; and if influence did not convince, punishment 
was to deter. 



SECTION II. THE LEGAL ESTABLISHMENT OF 

CHRISTIANITY. 

From a very early period it has been clad with pains 
and penalties. The following law was passed " in 
a.d. 747. " synod, at the beginning of September, near the place 
" called Cloves-hoos, these prelates of the churches of 
" Christ being present," [Cuthbert, archbishop of 
Canterbury ; Dun, bishop of Rochester ; three bishops 
of the Mercians ; and several others,] " in the 32nd 
" year of the reign of Edibald, king of the Mercians, 
u who was then present with his princes and dukes." 
[This latter sentence in the record proves the incorpo- 
ration of regal with priestly power, as both parties 
sat in the same council.] It proceeds, " When the 
" prelates of the sacred order, with many priests of 
" lesser dignities, met, to treat of and settle the unity of 
" the church, and the state of Christianity, it was decreed 
" that there be perfect agreement of all, in all the rites 
" of religion, in word, in work, and in judgment." 

The church then contented herself with an " admo- 
" nition " from the Pontiff Zacharias, who, in his letter 



CHURCH LAWS 



85 



then read, "in a loving; manner entreated them, and chap. iv. 

° Sect 2. 

" hinted, among other things, that a sentence of Le „ al esta . 
f> anathema should certainly be published against them Christianity. 
" that persisted in their pertinacious malice and con- 
" tempt" of his authority, by continuing to neglect the ^ 
institutions of Rome. 

During the following one hundred and thirty years, 
the church appears to have walked alone. No doubt 
she had to contend with a mass of national immorality, 
superstition, and disorder. Still, she employed moral 
force only ; not that that moral force was then of 
any great worth ; it was, however, all she had. At 
length, she beckoned over to her side the civil power. 
She is henceforth to be seen associated with men of 
war, of blood, and of death. It now became penal 
to reject Christianity. The first law upon this matter 
was passed in Alfred's time. It reads thus : — 

"This is the ordinance that King Alfred made and ad. 878. 
" published, when the English and Danes received each 
" other into perfect peace. In the first place, they 
" declared that they would love one God, and abandon 
" all heathenism in earnest. And they have enacted a 
"just secular law, because they knew that they could 
" not otherwise govern many, who would not submit 
" (as they should) to ecclesiastical discipline, and they 
" have decreed a secular discipline between Christ and 
" king in all cases, where men were unwilling to con- 
" form to ecclesiastical discipline, with a just regard to 
"the authority of the bishops, viz. : — 

" 1. That the peace of the church, within its walls, 



86 



THE HISTORY OF 



chap.^iv. " and the peace of the king's right-hand be equally 
Le^iTs^ " inviolable. 

ciiiistianity. kt 2. And if any one do reject the Christian religion, 
" or shew his esteem for heathenism, let him pay his 
" weregild, or a mulct, or a fine, in proportion to the 
" fact." Weregild is a Saxon term, and signifies the 
price of the life of a man. Mulct, was an English 
penalty. Fine, was Danish. The three national 
parties were thus combined in enforcing a law, designed 
to make Christianity override the religious observances 
of Saxons and Danes ; and to bring them, by means of 
one system of religion, into quiet submission to one 
supreme civil authority. 

This was followed by another law, emanating from 
the Northumberland priests. They ordained that " We 
" should all honour and love one God, and diligently 
" observe one Christianity, and wholly abandon all 
" heathenism. If any man be discovered to practise 
" any heathenism for the future, or affect idolatry on 
" the account of witchcraft, if he be a king's thane [a 
" baron], let him pay nine marks [a mark was thirty 
" pence] and a half ; half to Christ, and half to the 
"king. If he be a landed man of any other sort, let 
" him pay five marks and a half ; half to Christ, and 
" half to the landlord. If he be a common man, let 
" him pay twelve ore," [a silver coin, valued at one 
shilling and eightpence]. Denial of the crime was 
triable by a jury of compeers. They go on to say, 
" Our will is, that there be one Christianity and one 
" monarchy in the nation for ever." 



Canons, 
A.D. 950. 



CHURCH LAWS. 



87 



The force of this law will become more evident, if it chap. iv. 

t ,m ^ c . _ . . □ Sect. 2. 

be recollected, that Xorthumbria had not only been one Lecralesta , 
of the seven Saxon kingdoms, which, in a.d. 800, became Christianity, 
united under Egbert, but had most vigorously opposed 
all the |3apal attempts at domination. The Northum- 
berland priesthood, however, at length gave way ; and, 
one hundred and fifty years after the extinction of the 
Saxon heptarchy, united themselves in furtherance of 
what they called " one Christianity and one monarchy 
" for ever." 

This adroit admixture of the two powers, by a 
sentence of pointed and expressive simplicity, has for 
more than nine hundred years been maintained. The 
principle thus clearly enunciated by the church has 
been uniformly recognised and acted upon by the state. 
It has incorporated the ecclesiastical aphorism into 
common law. Therefore it is that offences committed 
against Christianity are regarded as injuries done to 
society, and cognisable in the common law courts as 
those committed against the sovereign. The results of 
this admixture of the two powers may be traced in the 
details recorded in subsequent sections of this chapter. 
They commence with legal sanctions respecting church 
unity. 



SECTION III. CHURCH UNITY. 

The preceding laws related to external Christianity, 
and were designed to enforce unity of faith and practice. 
This cardinal and favourite dogma of the church of 



88 



THE HISTORY OF 



chap.iv. Rome has, by her own laws, been proved an absurd 
church pretension. To recite all her puerile attempts would 

unity. 

be unnecessarily to weary the reader with details with 
which he may already be familiar. It is, however, 
desirable, in order to exhibit the continuous efforts 
directed to this point, very briefly to state the principal 
penal laws first enacted by the church, and afterwards 
adopted by the state. 

Half a century had elapsed since the canon passed 
respecting " one Christianity," as contradistinguished 
from " heathenism." This law had involved a principle 
that struck with fatal force against freedom of intellect, 
civil rights, and personal religion. The church was 
made to feel that the law was so regarded ; for, rude 
and irreligious as men then were, they could, by one of 
the instincts inherent in all minds, distinguish between 
evidence and force. To meet the difficulty, and prepare 
the way for a more easy surrender to priestly rule, the 
ecclesiastical body changed its tactics, and instead of 
seeming to depend upon human authority, claimed an 
immediate Divine sanction. 

In a mixed assembly of senators and priests, it is 
canons, stated that " all the great men of the English were 

A,D. 1009. 

" summoned to appear on the holy day of pentecost, 
" at a place called Eanham [in Oxfordshire], by the 
" peremptory edict of King Ethelred, at the instigation 
" of iElfeah and Wulfstan, the archprelates ; a multi- 
" tude of venerable worshippers of Christ being there- 
" fore assembled in that place, they being divinely 
" inspired, conferred together for recovering the exercise 



CHURCH LAWS. 



89 



"of the Catholic religion. In the first place is the chap.iv. 
" prime decree of the bishops, That we all turn from our church 
f sins, as far as we can, and earnestly confess our mi y 
" misdeeds and make satisfaction for them ; and duly 
"love and honour the one God, and uniformly 
" maintain the one Christianity, and earnestly avoid all 
" heathenism, and advance devotion among ourselves, 
" and effect peace and unity." 

Having thus set up a bold pretension to Divine 
inspiration, the church appears to have tried its effect 
for nearly the next four hundred years. At least, we 
find no trace of any penal laws during this period. 
But to avoid diversity of opinion was impossible ; in 
other words, to prevent men looking into, or bringing 
to open light the corruptions of the then church, was 
found impracticable. Exasperated at the resistance 
men, even in those ages, raised against religious despo- 
tism and ecclesiastical deformity, the church applied to 
the state for additional civil penalties against all 
reformers. It had, at one time, been content with the 
infliction of fines. It now asked the state to grant it 
the use of more deadly weapons than it had been able 
to forge in its own arsenal, or to wield by its own arm. 
The canon gave place to the statute. The 5th Rich. II., 
cap. 5, therefore authorised " commissions to be directed 
" to the sheriffs, to apprehend such as be certified by 
" the prelates to be preachers of heresy, and to hold 
" them in strong prison until they will justify themselves 
" according to the law of holy church." It appears to 
have tried this new experiment for twenty years, and to 



90 



THE HISTORY OF 



C s<fct*3 IY ' ^ ave f a ^ e d> as k° tn preceding or subsequent acts of 
church religious coercion have done. Instead of recovering 

unity. 

the downward progress it had taken, the church con- 
tinued, with increased velocity, to run its dangerous 
course ; and because it had to contend against giants, 
it buckled on all the armour it could grasp, the greater 
part of which was supplied at the cost, and employed 
to the disgrace of the state. The following statute 
illustrates this fact : It is the 2nd Henry IV., cap. 15, 
directed against the Lollards, as they were in derision 
called. It says — 
Ajxwob. "Whereas, it is showed to our sovereign lord the 
" king, on behalf of the prelates and clergy of this 
" realm, that although the Catholic faith, builded 
" upon Christ, and by his apostles and the holy church, 
" hath been, amongst all the realms of the world, most 
" devoutly observed, and the church of England by 
" his noble progenitors and ancestors laudably endowed; 
" yet, nevertheless, divers false and perverse people, of 
" a certain new sect of the said faith, of the sacraments 
" of the church and the authority of the same damnably 
¥ thinking ; and, against the laws of God and of the 
" church, usurping the office of preaching, do, per- 
" versely and maliciously, in clivers places, under the 
H colour of dissembled holiness, preach and teach new 
" doctrines, contrary to the same faith and blessed 
" determinations of holy church, and of such sect and 
" wicked doctrines and opinions, they make unlawful 
" conventicles and confederacies ; they hold and exercise 
H schools ; they make and write books ; they do 



CHURCH LAWS. 



91 



" wickedly instruct and inform people ; and, as much chap. iv. 
' as they may, excite and stir them to sedition and church 

unity. 

" insurrection, and rnaketh great strife and division 
" among the people ; and other enormities, horrible to 
" be heard, daily do perpetrate and commit, in subversion 
" of the said Catholic faith, and in diminution of the 
" estate, rights, and liberties of the said church of ^ 
" England," — [Ecclia Anglicana.] — " And whereas the 
" diocesans of the said realm cannot by their juris- 
" diction spiritual, without aid of his majesty, suffi- 
" ciently correct the said false and perverse people, 
" nor refrain their malice, because the said people do go 
" from diocese to diocese, and will not appear before 
" the said diocesans, but the same"and their j urisdiction 
" spiritual, and the keys of the church, with the censures 
" of the same, do utterly contemn and despise. Upon 
" which novelties, above rehearsed, the prelates and 
" clergy have sought that this wicked sect, preachings, 
" doctrines, and opinions, should from henceforth cease, 
" and be utterly destroyed ; therefore, by the assent of 
" the states, [it hath been] ordained and granted that 
" none within this realm presume to preach, openly or 
" privily, without licence of the diocesans, nor teach, 
" hold, or instruct, openly or privily ; nor make nor 
" write any book contrary to the Catholic faith or deter- 
" min at ion of the holy church ; nor make any conven- 
" tides; or in any wise hold or exercise schools." It 
goes on to say — " And if any persons be before the 
" diocesans convicted according to the canonical decrees, 
" the sheriff of the county, mayor of a city, or town, 



92 



THE HISTOKY OF 



chap. iv. " or borough, after such sentence promulgate, shall 
Clmrcb " them receive ; and them before the people in a high 
" place do to be burnt, that such punishment may 
" strike in fear to the minds of the others, whereby no 
" such wicked doctrine against the Catholic faith be 
" sustained or suffered. And the sheriffs, mayors, and 
" bailiffs shall be attending, aiding, and supporting, to 
" the said diocesans and their commissaries." 

But, as though the church would not be behind the 
state in acts of cruel persecution, we have " the consti- 
" tutions of Arundel, archbishop of Canterbury, pub- 
" lished in a convocation of the whole clergy of his 
Canons, " province, celebrated at Oxford, a.d. 1408, Henry IV. 
" reigning in England, Gregory XII., Alexander V., 
" and Benedict XIII., exercising the papal jurisdiction 
" all at once." With three popes of Rome, each 
excommunicating one the other; with an English 
archbishop, maddened into rage, and a parliament pros- 
trated before arrogant ecclesiastics, what was to be 
expected but the following fulmination? 
A-SrS. " He does an injury to the most reverend synod who 
" examines its determinations ; and since he who dis- 
" putes the supreme earthly judgment is liable to the 
" punishment of sacrilege, as the authority of civil law 
" teaches us, much more grievously are they to be 
k ' punished and cut off, as putrid members, from the 
" church militant, who violate, oppose, and despise, by 
" various doctrines, words and deeds, the laws and 
" canons made by the key keeper of eternal life and 
l< death. We, therefore, for the strengthening of the 



CHURCH LAWS. 



93 



" canon law made on this behalf, add the iust following C 1 AP „ IV 

J & Sect. 3. 

" penalties : — Church 

unity. 

" 1. We ordain, &c, that no one preach the word of 
" God without leave of the diocesan." Excommunica- 
tion followed upon the first violation of this law, and 
u confiscation of goods and imprisonment until repent- 
" ance," upon a second transgression.* 

" 2. Preaching, teaching, and observing anything 
" contrary to the determinations of holy church." The 
same penalties. It goes on to say — 

" 3. Because a new path oftener misleads men than an 
" old, we ordain that no book or treatise, composed by 
" John Wickliff, be read in the schools, halls, or inns, 
" unless unanimously approved by the Universities of 
" Oxford or Cambridge." 

4. The translation of the text of Holy Scripture was 
denounced " a dangerous thing, as blessed Hierome 
" testifies, because it is not easy to make the sense in 
" all respects the same, as he confesses. But he made 
" frequent mistakes in this business, although he was 
" inspired!' The translation of the Scriptures by 
Wickliffe was forbidden M to be read, either in public 
" or private, in whole or in part, under pain of the 
% greater excommunication. Every transgressor was 
to be punished as a fomenter of heresy and error. 

* It is a remarkable illustration of the then state of things, that 
although "the Word of God" was, by the church, prohibited being 
preached, yet that "ignorant priests " were, by this very canon, recog- 
nised as still abounding in the land. This canon, therefore, repeats and 
re-enforces the law of the church made in 1281, and which will be found 
in another part of this volume. 



94 



THE HISTORY OF 



cgAP.^rv. 5. Disputation in schools was interdicted, 
church 6. The University of Oxford was declared to be 

unity. 

degenerated ; and, through it, " our province is infected 
" with new unprofitable doctrines, and blemished with 
" the new damnable brand of Lollardy, to the great 
" scandal of the University itself, reaching to remote 
" foreign parts ; therefore, lest, the fountain-head being 
" polluted, the stream be made impure even after 
" the cleaning of the river, we ordain every warden, 
" provost, and sexton of colleges, and the principal of 
" every inn or hall of the said University, to inquire 
" after all suspected persons, and to expel doctors, 
" masters, bachelors, or scholars." 

And, to prove the animus of the whole, it was added, 
" That for the more easy punishment of offenders — in 
" case they could not be found — they were to be 
" proceeded against without noise or form of judicature, 
" and justice done upon the contumacious, notwith- 
" standing their absence.'" 

Such was the ecclesiastical fury of those times, that 
it sought to abrogate or set aside the law of 28th Edw. 
III., c. 3, which said, " No man shall be taken, put 
" out of land or tenement, imprisoned, disinherited, nor 
" put to death, without being brought in answer by due 
" process of law." Who would prefer ecclesiastical to 
monarchical authority ? 

Yet, in proportion to the failure, rose the intensity of 
persecution. Another statute was, therefore, added, 
^tatute,^ It is the 2nd Henry V., cap. 8, w r hich required that 
not only the chancellor, judges, and magistrates, but 



CHURCH LAWS. 



95 



" all officers having governance of people, to be sworn, chap. tv. 

Sect. 3. 

" at the time of their appointment, to assist the ordina- dfflM£ 
" ries in extirpating heretics," who were to forfeit their 
lives, "and all their fee simple lands, goods, and chattels." 
The canon had extended the confiscation to goods 
only. The statute included lands as well. 

In spite of all these terrors men would think, speak, 
aye, and act for themselves. Again, therefore, within 
two years, the canon law poured forth its denunciations. 
By it a corps of spiritual police was established. The 
constitution of Archbishop Chichlev required "every canon, 

1 J ^ J A.D. 1416. 

" bishop and archdeacon, by themselves, or by their 
" officials, diligently to inquire after persons suspected 
" of heresy ; and cause three or more men, of good 
" report, in every deanery and parish in which heretics 
" are said to dwell, to swear that if they know any 
" heretics who keep private conventicles, or differ in 
" their life and manners from the generality of the faith- 
" ful ; or who maintain heresies or errors, or have sus- 
" pected books, written in English ; or that entertain 
" persons suspected of heresies or errors ; or that favour 
" such to dwell or converse ; or resort in or to such 
" places ; — they will inform against, and discover in 
" writing those persons, with all such circumstances 
" upon which they are suspected, to the said bishops, 
" archdeacons, or their commissaries." " And let those 
" archdeacons, or their commissaries, secretly transmit, 
" under their seals, the names of the persons so informed 
" against, to the diocesan, who shall make lawful pro- 
" cess against them with effect." Persons " convicted, 



96 



THE HISTORY OF 



chap. iv. " but not delivered to the secular court," (in order to be 

Sect. 3. ^ v 

cimrch hurnt, according to the 2nd statute of Henry IV.,) 
y " were to be imprisoned till the next convocation of ihepre- 
" lates" who might then further prosecute the offender. 

All these statutes and canons remained in force, with 
others subsequently added, until the time of Edward VI., 
when they were repealed ; but they were revived under 
Mary. 

The events that occurred within the century and 
nearly a quarter subsequent to the passing of these laws, 
present a revolting exhibition of folly and wickedness. 
Prelates and monarchs outvied each other in religious 
persecution. Whatever changes took place in the 
external administration of ecclesiastical affairs, and 
they were many and of great moment, there yet 
remained the old leaven of coerced unity. One standard 
only was allowed — that was, "the church;" one pro- 
fession only was legalised, viz., implicit faith in that 
standard. 

However anxious Henry VIII. might be to eject 
the Pope from the exercise of temporal power in this 
country, he was resolved that from the spiritual domina- 
tion of Rome there should be no liberation. By the 25th 
A S D &t i534. H enr y VIII., cap. 21, sec. 19, it is expressly declared, 
that the act should " not be expounded that your grace, 
" your nobles, and subjects intend to decline or vary 
" from the congregation of Christ's church in any things 
" concerning the very articles of the Catholic faith of 
" Christendom." 

Six years after the above act had passed, another 



CHURCH LAWS. 



97 



law was made, which for cruelty of purpose, arrogance chap.iv. 
of impiety, and hardihood of religious rage, had never church 

unity. 

been equalled by any previous persecuting enactment. 
It is, in fact, the concentration of all the preceding 
blood-stained statutes and canons. The 31st Henry 
VIII., cap. 14, sec. 8 and 9, declares: — 

" If any person by word, writing, printing, ciphering, 
" or otherwise, do preach, teach, dispute, or hold opinion, 
" that in the blessed sacrament of the altar, in the form 
" of bread and wine (after the consecration thereof), 
" there is not present really the natural body and blood 
" of our Saviour Jesus Christ, conceived of the Virgin 
" Mary ; or that after the consecration there remaineth 
" any substance of bread and wine, or any other sub- 
" stance but the substance of Christ, God and man ; 
" or that in the flesh, under the form of bread, is not 
" the very blood of Christ ; or that with the blood, 
" under the form of wine, is not the very flesh of Christ, 
" as well apart as though they were both together ; or 
" affirm the said sacrament to be of other substance 
" than is aforesaid ; or deprave the said blessed sacra- 
" ment ; — he shall be adjudged an heretic, and suffer 
" death by burning ; and shall forfeit to the king all 
" his lands, tenements, goods and chattels, as in high 
" treason." Thus, this act declared it to be the highest 
crime known in law (treason) not to believe a lie ! 

Milder penalties attached to persons " who taught or 
" affirmed the necessity of administering the sacrament 
" in both kinds ; or that all persons (except priests) 
" should partake of both kinds ; or that priests might 

H 



98 



THE HISTORY OF 



chap. iv. "marry; or that monastic vows were not binding; 
church " or that auricular confession was not to be prac- 

unity. 

"tised;" for holding these opinions, the persons were 
declared felons. Bishops were to punish offenders, 
and so also were justices of the peace ; lords of manors, 
in their courts leet, were to do the same. The owners 
of the soil were thus converted into tormentors of 
the soul. 

This is called the Six Articles Act. For speaking 
against it, more than five hundred persons in the city of 
London alone were, in a few days, thrown into prison. 
Lambert disputed, in Westminster Hall, with Hen. VIII., 
personally ; and was silenced by Henry handing him 
over to the flames. 

It must be remembered that the state was not the 
only party responsible for this cruel enactments Both 
in convocation and parliament, Cranmer opposed the 
measure. " Before this act passed, marvellous great 
" struggling there was, on both parts, for and against 
u it."f The bill, however, was carried through both 
houses with great haste. On the 1st of June, it was 

* The impious decree issued first from the convocation. The act is 
headed, " An act for abolishing Diversity in Opinions." Its preamble 
states — " Forasmuch as in the synod and convocation, there were certain 
M articles set forth which the king, of his most excellent goodness, com- 
" manded should be deliberately and advisedly by his said archbishops, 
" bishops, and other learned men of his clergy, debated ; whereupon, after 
" great and long deliberate and advised disputation and consultation had, 
V concerning the said articles, as well by the consent of the lords spiritual 
" and other learned men in their convocation, it is with the consent of the 
rt commons, assented," &c. 

f Strype's Memoirs of Cranmer, vol. i. p. 162. 



CHURCH LAWS. 



99 



brought into the House of Lords, and on the 10th chap. iv. 

& ' Sect. 3. 



passed. On the 14th of the same month it passed the 
Commons ; and on the 28th, received the royal assent. 
An English Inquisition erected within twenty-eight 
days ! 

Nor was it enough to set up a blood-stained process, 
by which to compel men to believe more palpable 
absurdities than even a corrupt and besotted pagan 
priesthood had ever attempted to force upon any popu- 
lace, however degraded it might be ; Henry and his 
parliament stretched their powers a little further. 
There were other opinions disliked. These had not 
been included in the Six Articles Act ; but they were 
inserted in an act passed the very next year. The 
32nd Henry VIII., cap. 49, sec. 11, excluded from the 
general pardon " those persons who hold these heresies 
" and erroneous opinions : that is to say, that it is not 
" lawful for a Christian man to bear office or rule in 
" the commonwealth, — that Christ took no bodily sub- 
" stance of our blessed Lady, — that sinners, after baptism, 
" cannot be restored by repentance, — that every manner 
" of death, with the time and hour therof, is so certainly 
" prescribed, appointed, and determined to every man 
" of God, that neither any prince by his sword can 
" alter it, nor any man by his own wilfulness prevent 
" or change it." 

By virtue of this exclusion from the general pardon, 
by the above act, Ann Askew, a young gentlewoman 
of condition, was prosecuted for denying the corporal 
presence ; and, with Nicholas Ottenden, a priest ; John 

h 2 



Church 
unity. 



Statute, 
A.D. 1540. 



100 



THE HISTORY OF 



chap. iv. Lasells, a gentleman belonging to the Court ; and John 

oCCt. o. 

church Adlam, a tailor ; were all burned in Smithfleld. — 

unity. 

Collier, v. 161. But we must relieve the reader from 
this painful exhibition. 

Edward VI. had no sooner ascended the throne, 
than the cruel acts of his father were swept away. The 
AD a i547 Edward VI., cap. 12, offers a singular apology for 
all the cruelties previously inflicted in the name of 
outraged religion. It says, " Many of the laws, passed 
" in the previous reigns, were deemed very strait, sore, 
" extreme, and terrible ; but as, in tempest or winter, 
" one garment is convenient ; but, in calm or warm 
" weather, a lighter garment is used, — so we have seen 
" divers sore laws taken away." It therefore repealed 
many of the penal acts passed in the times of Richard II., 
Henry V., and Henry VIII., " concerning religion 
" or opinions." 

During six years and six months, a gleam of light 
was cast over the moral darkness of that age ; " but 
" the darkness comprehended it not." Afresh the 
clouds gathered around the throne of Mary. Her 
parliament repealed all the tolerant laws of Edward. 
a.d. 1554. The 1st and 2nd Philip and Mary, cap. 6, revived all 
the penal statutes of Richard II. and Henry VIII., 
against heresy and heretics. The fires of persecution 
again blazed. No less than two hundred and twenty- 
eight persons were burned for religious opinions, deemed 
erroneous and heretical, during the inglorious reign of 
that infuriated bigot. Her death put a stop to the 
persecution. 



CHURCH LAWS. 



101 



The first of Elizabeth not only repealed many of 
these blood-stained statutes of Mary, but removed the 
old standard of opinions. This was done by the 35th 
section of the 1st Elizabeth, cap. 1, which declared that 
" No manner of order, act, or determination, for any 
" matter of religion, had or made by the authority of this 
it p resen t parliament," (it was still the parliament which 
had been summoned by Mary, and was not dissolved for 
several months after Elizabeth's accession,) " shall be 
" deemed at any time hereafter to be any error, heresie, 
" schism, or schismatical opinion." 

This clause was designed to put out the fires Mary 
had lighted up through the country, and but for 
which, they might have continued to blaze. The next 
clause (sec. 36) defined the standard by which heresy 
was then, and is now, determined. And a strange 
medley it is. All the old decisions are recognised, as 
well as the canonical Scriptures. Heresy was to be 
" only such as heretofore hath been determined to be 
" heresy by the authority of the canonical Scriptures ; 

or by the first four general councils, or any of them ; 
f or by any other general council wherein the same 
" was declared heresy by the express and plain words 
" of the said canonical Scriptures ; or such as hereafter 
" shall be ordered or determined to be heresy by the 
" high court of parliament, with the consent of the 
" clergy in their convocation." 

Never in the history of the world has any attempt to 
secure a favourite object been more signally unsuc- 
cessful, than this endeavour to coerce into an external 



102 



THE HISTORY OF 



chap. iv. religious oneness. We shall see, however, that the evil 

Sect. 3. to ' ' 

did not all at once cease. 

SECTION IV. RELIGIOUS OPINIONS. 

It is a remarkable fact, that from the time of Eliza- 
beth until that of William III., there were more penal 
statutes made respecting religious opinions, than had, in 
any corresponding period of 130 years in English his- 
tory, disfigured Christianity. Nearly fifty statutes 
created about 110 offences. "Though the statute (1st 
" Elizabeth, cap. 1) effected an emancipation from the 
" Roman yoke, it was not till long afterwards that the 
" nation learned the lesson of religious toleration. Our 
" law, in the meantime, proceeded not only to imitate 
" the persecutions of the popish times, but in some 
" respects to surpass them ; for while it continued to 
" punish the offence of heresy, it began now to exercise 
" new rigours of its own with respect to that of non- 
" conformity.* 

Up to the time of Elizabeth, the thunder of eccle- 
siastical artillery had been poured forth against conduct. 
Henceforth, it was levelled against opinions. Nay 
more — the statute law now, for the first time, punished 
statute, omissions, as well as actions. Thus, the 1st Elizabeth, 

A.D. 1558. ' ' ' 

cap. 2, sec. 14, declares, " That all and every person 
" shall, unless they have lawful or reasonable excuse to 
" be absent, resort to their parish church every Sunday, 
" and other days ordained to be kept as holy days, 

* Stephens' Commentaries on the Laws of England, vol. iii. p. 46. 



CHURCH LAWS. 



103 



" then and there to abide during the time of common chap. iv. 

° Sect. 4. 

" prayer, preaching, and other service of God, upon pain Religious 

n ii r» i i i l opinions. 

" of punishment by the censures or the church, and 
" the forfeiture of twelve pence for every such offence." 

Nonconformists were liable, therefore, to be cited 
before the judges of assize, and also before bishops in 
the ecclesiastical courts. The Toleration Act repealed 
the above clause, and thus took away the criminal 
offence of nonconformity. 

Other omissions were speedily afterwards punished. 
The 5th Elizabeth, cap. 23, sec. 13, (and it is to this A s ^ 6 \ 
day an unrepealed provision,) declares, that for " re- 
" fusing to have his or their child baptised, or to receive 
" the holy communion," the offender is liable to im- 
prisonment. 

Nor were the common people the only ones exposed 
to threatening for omissions of duty. In the act first 
recited, viz., the 1st of Elizabeth, there is a singular 
clause relative to archbishops and bishops. These, it is 
to be recollected, had absented themselves from attend- 
ing parliament during the passing of the act. They 
were, however, required to put it into execution. In 
sec. 15, are these words : — 

" The Queen's most excellent majesty, the lords tern- 
" poral and all the commons, do in God's name 
" earnestly require and charge all the archbishops and 
" bishops, that they endeavour, to the uttermost of 
" their knowledges, that the due and true execution 
u hereof may be made throughout their dioceses, as they 
" will answer before God for such evils and plagues 



104 



THE HISTORY OF 



chap. iv. "wherewith Almighty God may justly . punish his 
Religious " people for neglecting this good and wholesome law." 

opinions. , 

Was ever such refinement in folly ? Archbishops 
and bishops were attempted to be frightened into com- 
pliance with a law that was inimical to their conscien- 
tious opinions, by " the Queen's majesty" threatening 
them with being " accessories before the fact" to certain 
plagues, that Heaven might perad venture inflict upon 
the nation ! Of all the hobgoblins that a disor- 
dered imagination ever created, this legal scarecrow is 
the most laughable. But the history of religious legisla- 
tion will be best learned by the following tabular state- 
ment of the principal laws passed since the Reformation. 



Statutes passed against Nonconformists, Papists and Episcopalians, 
from the time of Edward VI. (a.d. 1547), until the time of 
Geo. III. (a.d. 1820), being 273 years. 



Statutes. 


Offences. 


Penalties. 


Repealed or in Force. 


2Edw.VI. 
cap. 1. 


Parsons, Vicars, or other Mi- 
nisters, speaking against the 
Book of Common Prayer, 
or Sacraments, or using any 
other form or rite, other 
than as set forth in the 
same. 


First offence, forfeit so 
much of his pro- 
motion as the King 
might fix, and six 
months' imprison- 
ment. Second of- 
fence, twelvemonths 
and deprived of all 
spiritual promotion. 


In force. 






Any person whatsoever speak- 
ing against Prayer Book, 
or any part thereof. Minis- 
tering any Sacrament other 
than as therein prescribed, 
or interrupting any Minis- 
ter in the administration 
thereof. 


Forfeit ,£10 for the 
first offence; j£20 
for the second; and 
for the third, forfeit 
all his goods and 
chattels, and suffer 
imprisonment for 
life. 


The words initalics 
are still in force ; 
the middleclause 
repealed as to 
Protestant Dis- 
senters by Tole- 
ration Act. 



CHURCH LAWS. 105 



Statutes. 



Offences. 



Penalties. 



Repealed or in Force. 



5 & 6 Edw. 
VI., cap. 1. 



1 Eliz. * 
cap. 2. sec. 
14, & c. 1. 



5 Eliz. cap. 
I. 



5 Eliz. cap. 
25. 

13 Eliz. 
cap. 2. 



Not attending Church every 
Sunday, or Holy Days, and 
remaining during service. 

Being present at any other 
form of Prayer, Sacra- 
ments, ox making Ministers. 



Depraving Common 
Book. 



Prayer 



Not repairing to Church. 



Maintaining the jurisdiction 
of the Bishop of Rome. 

Refusing to take the Oath 
of Supremacy. 

Not having a child baptised. 



Obtaining or usingbulls, abso- 
lution, &c, from the Bishop 
of Rome. 



Censure of the Church. 

First offence, six 
months' imprison- 
ment. Second of- 
fence, 12 months ; 
and for the third, 
imprisonment for 
life. 



100 marks, or six 
months' imprison- 
ment. Third offence, 
imprisonment for 
life. 

Fine of twelve-pence 
andChurch censures. 



Premunire. 
High treason. 

Excommunication and 
imprisonment. 

High treason. 



Repealed by 7 & 8 
Vict. c. 102; and 
9 & 10 Vict., c. 
59. 

Repealed as to Ro- 
man Catholics, 7 
&8 Vict.,c. 102 
(1844); and 9 
& 10 Vict., c. 
59, but which do 
not affect Pro- 
testant Dissen- 
ters as to the 
making of Mi- 
nisters. 

In force. 



Repealed by Tole- 
ration Act, A.D. 
1688, as to Pro- 
testant Dissen- 
ters ; and by 7 & 
8 Vict, as to Ro- 
man Catholics. 

Repealed as to Ro- 
man Catholics 
by 7 & 8 Vict., 
cap. 102. 

Not repealed as to 
Episcopalians. 

Repealed by 9 & 
10 Vict., c. 59; 
though still un- 
lawful to import 
bulls from Rome 



* The Acts of Mary are stated at page 100. 



106 



THE HISTORY OF 



Offences. 



Maintainers or comforters of 
such offenders. 

Concealers of ditto. 

Importers of crosses, pic- 
tures, offered or accepted 
for use. 

Withdrawing from the re- 
ligion established, to the 
Romish religion. 

Aiders of ditto. 

Saying Mass. 

Hearing Mass. 

Absenting from Church. 

Keeping a Schoolmaster who 
absentshimselffromChurch. 



Jesuists coming into or re- 
maining in the country. 

Aiders of such. 

Carrying relief to any such 
persons beyond sea. 

Not discovering such persons, 
if a Justice, 

Any other person, 

Recusant conveying his estate 
to prevent seizures. 

Not repairing to Church. 



Penalties: 



Premunire. 



Misprision of treason. 
Premunire. 



High treason. 



Misprision of treason. 

100 marks and one 
year's imprisonment 

Same punishment. 

£20 per month. 

£\0 a month, School- 
master disabled, and 
one year's imprison- 
ment. 

High treason. 



Felony. 
Premunire. 

Fined 200 marks. 

Fined at the Queen's 
pleasure. 

Void. 



Forfeiture of all goods 
and two-thirds of 
lands and leases. 



Repealed or in Force. 



Repealed by 9 & 
10 Vict., c. 59; 
though still un- 
lawful to import 
bulls from Rome 



Repealed as to Pro- 
testant Dissen- 
ters by 1 William 
and Mary, 1688; 
and as to Roman 
Catholics, 7 & 8 
Vict., c. 102, in 
1844. 



Repealed as to Ro- 
man Catholics 
by 7 & 8 Vict., 
c. 102. 



CHURCH LAWS, 



107 



Offences. 



Penalties. 



Repealed or in Force. 



Any person, above sixteen 
years of age, frequenting 
Conventicles, or persuading 
others to do so. 

Nonconformists. 



Popish recusant going five 
miles beyond his dwelling. 

Being a copyholder. 



A Jesuit or Priest suspected 
to be such, or refusing 
to answer. 

Submission to be made some 
Sunday in Church. 



Popish heir, continuing a Pa- 
pist after he comes to six- 
teen years of age. 



Sending a child to a Popish 
college. 

The person so sent. 



Keeping school, and the 
Schoolmaster. 



Committed to prison 
till heconforms him- 
self, and makes sub- 



To depart the realm. 

[This was the first sta- 
tute expressly made, 
after the Reforma- 
tion, against Dis- 
senters.] 

Forfeits all his lands, 
goods, and annuities 
for life. 

Forfeits his copyhold 
to the Lord of the 
Manor. 

Committed to prison 
till he answers di- 
rectly. 

If not so made, sub- 
mission of no avail. 

[This appears to have 
been copied from the 
Romish canon as 
to recanting heresy. 
See page 22, chap, 
ii. of this work.] 

Lands not freed till he 
conforms, and takes 
the Oath of Supre- 
macy. 

Forfeit £100. 



Disabled to inherit, 
purchase, take, or 
enjoy land, legacies, 
&c, &c. 

Forfeit 40s. a day. 



Repealed by Tole- 
ration Act, as to 
Protestant Dis- 
senters ; and by 
7 & 8 Vict., c. 
102, as to Ro- 
man Catholics. 



Repealed as to Pro- 
testant Dissen- 
ters by Tolera- 
tion Act ; as to 
Roman Catho - 
lies, by 7 & 8 
Vict.,c.l02,and 
9 & 10 Vict., c. 
59. 



108 



THE HISTORY OF 



Statutes. 


Offences. 


Penalties. 


Repealed or in Force. 


3 Jumps I. 


Popish recusant convict that 


First year, forfeit £20 ; 


Repealed by 7 & 8 


cap. 4. 


conforms, but does not once 
in every year receive the 
Sacrament. 


second year, £40 ; 
and every default 
after, £60. 


Vict.c.l02;and 
9 & 10 Vict., c. 
59. 




If, after he has received the 


Forfeits £60. 






Sacrament, he makes de- 
fault a whole year. 














Absence from Church. 


£20 a month. 






Keeping servants or others 
in a house, who do not go 
to Church. 


£10 per month. 






To reconcile any subject to 
the See of Rome, or induce 
any to promise obedience 
thereto. 


High treason. 




3 James I. 
cap. 5. 


Popish recusant coming to 
Court, without command of 
the King. 

Remaining' in London, orwith- 
inlO miles, after conviction. 

Practising physic, law, or 
bearing office among sol- 
diers, or in a ship, castle, or 
fortress. 


Forfeits £100, divided 
between the King 
and discoverer. 

£100 forfeit. 
£100 fine. 


Repealed as to Pro - 
testant Dissen- 
ters by Tolera- 
tion Act; and 
by 7 & 8 Vict., 
c. 102, as to Ro- 
man Catholics. 




A married woman being a Po- 
pish recusant convict, whose 
husband is not, if she do 
not conform one whole year 
before his death. 


Forfeits the issues and 
profits of two-parts 
of jointure and 
dower, and is dis- 
abled to act as ex- 
ecutrix or adminis- 
tratrix to her hus- 
band, or to have any 
part of her husband's 
goods. 





CHURCH LAWS. 



109 



Offences. 



A Popish recusant convict 
marrying, except in open 
Church, and according to 
the orders of the Church. 



A woman recusant married 
otherwise than as above. 



A Papist not having 
baptised at Church. 



child 



Not being buried in the 
Church or churchyard. 

Child sent beyond sea. 



Popish patrons. 

Popish recusant convict. 

Importing Popish books. 
A man or his wife, 



Keeping arms, crucifix, or 
reliques of value. 

Refusing to take the Oath of 
Allegiance before one ma- 
gistrate. 



Married woman, being Popish 
recusant convict, not con- 
forming. 



Penalties. 



Disabled from having 
any estate of free- 
hold in the lands of 
his wife ; or if no 
lands, forfeits £100. 

Cannot claim dower or 
widow's estate. 

The husband forfeits 
£100. 

Executor or adminis- 
trator fined £100. 

Disabled to hold lands 
or goods by descent 
or grant. 

Disabled to present. 

Disabled to be execu- 
tor, administrator, 
or guardian. 

£40 forfeit, for every 
book. 

May have their house 
searched by two 
Justices, for Popish 
books and reliques. 

To be defaced and arms 
to be seized. 

Disabled to execute 
any office, or to 
practise any liberal 
science for gain. 

Imprisoned till she 
conform, unless the 
husband pay £10 
per month, or yield 
a third part of his 
lands. 



Repealed or in Force. 



Repealed as to Pro- 
testant Dissen- 
ters by Tolera- 
tion Act; and 
by 7 & 8 Vict., 
c. 102, as to Ro- 
man Catholics. 



Repealed by 7 & i 
Vict., c. 102 
and 9 & 10 Vict, 
c. 59. 



110 



THE HISTORY OF 



Offences. 



Conveying a child, or other 
person, beyond sea, with 
intent to enter a convent, 
college, school, or Popish 
family. 

Archbishops, &c. 



Nonconforming mayors, al- 
dermen, and members of 
corporate towns or boroughs 



Quakers refusing to take an 
oath, or persuading others 
to do so, or assembling for 
worship. 



Penalties. 



Disabled to prosecute 
in any suit in law 
or equity ; to forfeit 
goods, lands, and 
rents. 

Deprived of all secular 
dignity or power. 

To be removed, or not 
admitted unless they 
take the oaths of 
allegiance and su- 
premacy, and also 
take the Sacrament 
at Church. 

Forfeit £5, for the 
first offence ; ,£10, 
for the second ; and 
for the third, to be 
transported to the 
plantations as slaves. 



Keeping school without a 
Bishop's licence. 

Administering Sacraments in 
any other form than that 
prescribed in the Book of 
Common Prayer. 

Members of borough towns, 
mayors, and all other mu- 
nicipal officers and magis- 
trates, refusing to renounce 
the Oath, or " Solemn \ 
League and Covenant," as i 
being an unlawful oath. | 



Impi-isonment and £b 
fine. 

Penalty of £100 each 
time. 



Rem oved and displaced 



Repealed or iu Force. 



Repealed by 7 & 8 
Vict., c. 102. 



Repealed by 13 
Car. II., c. 2. 

Repealed 1828, by 
9 Geo. IV., c. 
17, s. 1. 



Repealed by Tole- 
ration Act as to 
Protestant Dis- 
senters; enlarged 
as to Protestants 
whether Dissen- 
ters or not, by 
52 Geo. III., c. 
155 ; and by 7 
& 8 Vict., c. 
102, as to Ro- 
man Catholics. 

Repealed by 9 & 10 
Vict., c. 59. 

Repealed virtually 
as to Protestant 
Dissenters by 
Toleration Act. 

Oath discontinued. 



CHURCH LAWS. 



Ill 



Offences. 



Not declaring assent to the 
Book of Common Prayer, 
on the feast of Bartholomew, 
1662. 

Taking ecclesiastical prefer- 
ment before ordained a 
priest. 

Not reading the Thirty-nine 
Articles, the first time of 
preaching, or not declaring 
their assent and consent. 

All persons, not having sub- 
scribed according to 14 
Car. , and all such as preach 
in Conventicles. 

Every person, above sixteen, 
present at a Conventicle. 



Preachers at ditto. 



Every person suffering a con- 
venticle to be held in his 
barn, house, or yard. 

Officers, civil and military, 
not receiving Sacraments at 
Church. 

" Atheism, blasphemie, he- 
resy or schism, or other 
damnable doctrines and 
opinions." 



Penalties. 



Deprived of all spiri- 
tual promotion. 



Forfeit £100 for every 
offence. 



Disabled to pre°ch. 



Not to come within 
five miles of any 
city, corporation, or 
parish. 

Fined five shillings for 
the first offence, and 
ten shillings for the 
second ; if too poor 
to pay the fine, to 
be levied on any 
other offenders pre- 
sent. 

Fined £20 for the first 
offence, and £40 for 
the second. 

Fined £20, or levied 
upon others present. 



Disabled to enjoy the 
office or employ- 
ment. 

Punishable by any Pro- 
testant archbishop 
or bishop by ex- 
communication, and 
ecclesiastical cen- 
sures, not extending 
to death. 



Repealed or in Force. 



In force. 



Repealed by Tole - 
ration Act as to 
Protestant Dis- 
senters. 



I 



Repealed by 7 & 8 
Vice, c. 102. 



In force. 



112 



THE HISTORY OF 



Offences. 



Peers and Members of the 
House of Commons not 
taking the Oaths of Supre- 
macy and Allegiance, or not 
subscribing a Declaration 
against Transubstantiation, 
Invocation of the Virgin 
Mary, and other Saints ., and 
the Sacrament of the Mass, 
as used in the Church of 
Rome. 



All ecclesiastical persons who 
do not take the Oaths of 
Supremacy and Allegiance 
appointed by this Act, in- 
stead of the former ones re- 
quired by 1st of Eliz. and 
3rd of James. 



All persons employed in any 
civil or military capacity, 
not taking the oaths. 



Other persons refusing these 
oaths. 



William & Every Papist to remove, with- 
Mary,Sess. in ten miles of London and 
1, cap. 9. Westminster. 

William & Every suspected Papist. 
Mary,Sess. i 
1, cap. 15. 



Concealing horses. 



Penalties. 



Disabled to sit, or to 
take a legacy, to 
sue in any Court, 
or to become exe- 
cutor, administra- 
tor, or guardian, 
and to forfeit ^£500 
for every offence. 



Deprived. 



Disabled. 



To be imprisoned three 
months, or fined 
forty shillings. 

To remove ; or be sub- 
ject to fine and im- 
prisonment. 



To keep no arms in 
his house ; nor any 
horsj above £h 
value. 



To be imprisoned three 
months, and forfeit 
treble the value of 
the horses. 



Repealed or in Force. 

Repealed by 10 
Geo. IV., c. 7. 



In force. 



Repealed by 7 & 
8 Vict., c. 102, 
and 9 & 10 Vict., 
c. 59. 



CHURCH LAWS. 



113 



Offences. 



Penalties. 



Not going to some Assembly Not to receive benefit 
acknowledged by this Act j of this Act. 
on Sundays ; and also Po- 
pish recusants ; and such 
as deny the doctrine of 
the Trinity. 



Quakers making two decla- Exempted from the 
rations — which were modi- penalties of all laws 
fied by the 8th Geo. I 
cap. 6. 



Persons seized of an advow- 
son to any Living, Free 
School, or Hospital, in 
trust for a Papist. 



Holding communion with the 
Church of Rome, or marry- 
ing a Papist. 



In default of taking the oaths 
prescribed by the 1st of 
William. 



Quakers' affirmation admit- 
ted instead of an oath. 



Apprehending a Popish bi- 
shop, priest, or Jesuit, and 
convicting him of saying 
Mass, or exercising his 
functions within the realm. 

Every such person. 



against Popish re- 
cusants and Protes- 
tant nonconform- 
ists. 



Trustee prevented pre- 
senting ; Universi- 
ties or Archbishop 
of Canterbury to 
present. 

Disabled from inherit- 
ing the Crown, or 
exercising any royal 
power. 

Liable to all penalties, 
and might be in- 
dicted as a Popish 
recusant convict. 

Still not qualified to 
give evidence in any 
criminal cause, to 
serve on a Jury, or 
to be in any place 
of profit in the Go- 
vernment. 



To receive i?100 from 
the sheriff of the 
county for the con- 
viction. 



To suffer perpetual 
imprisonment 

I 



Repealed or m Force. 

Repealed in 1813 
as to Unitarians, 
by 53 Geo. III., 
c. 160. 



Repeated by 10th 
Geo. IV., cap. 7. 



Repealed as to cri- 
minal and civil 
causes, where an 
oath is, or may 
hereafter be re- 
quired, by the 
9th Geo. IV., 
c. 32. 

Repeated by the 
i8th Geo. III., 
c. 60, s. 5 ; but 
repealed by 9 & 
10 Vict., c. 59. 



114 



THE HISTORY OF 



Offences. 



11 & 12 Every Papist, after 10th of 



Wm. III., 
cap. 4. 



April, 1700. 



13Wil!iam, Abjuration Oath, which ae- 
cap. G. nounced the Pretender, im- 
posed. 



Seducing from the Protestant 
Religion. 



Denying the right of the 
Queen to the Crown. 

By the Union of England and 
Scotland, the King or 
Queen, at coronation, to 
take and subscribe an Oath 
to maintain and preserve 
inviolably the doctrine, 
worship, discipline and go- 
vernment of the Church of 
England, as by law esta- 
blished. 



Penalties. 



Disabled to purchase 
land in the king- 
dom, or any profits 
out of the same. 

s2 io sauoH anoigifajtt 

wa io rf«iqo*I lot t vii 

Premunire, both as to 
the Papist and Pro- 
testant. 



Repealed or in Force. 



Repealed by 9 & 10 
Victoria, c. 59. 



1IA L.I .osO I 



Repealed by 9 & 10 
Victoria, c. 59. 



In force. 



Officers of the Crown present To conform within the Repealed 
at a Conventicle. next term or ses- Geo. I. 

sion. 



Nonconformist Schoolmasters, 
after the 1st August, 1714. 



Resorting to a Conventicle. 



Repetition and enlargement of 
the 3rd James, cap. o, and 
1 William, cap. 26. 



Committed to the 
Common Gaol for 
three months. In- 
capable of keeping 
School. 

Liable to the above 
penalties. 



by 5th 
c. 4. 



Repealed by 19th 
Geo. III., c. 44 
(1779), s. 2. 



CHURCH LAWS. 



115 



12 Anne, 
cap. 12. 

1 Geo. I. 
cap. 50. 



1 Geo. I. 
cap. 55. 



I Geo. I. 
cap. 18. 



9 Geo. I. 
cap. 24. 



Offences. 



Conforming to the Church, 
not to divest the Presentee. 

All manors, lands, money, 
goods, &c, given to, or to 
be enjoyed by any Abbey, 
or Religious House or Se- 
minary, for Popish or su- 
perstitious use. 

Popish Recusants, or persons 
professing the Popish reli- 
gion before 20th January, 
1716. 



! 



Repeated the 1st of George, 
cap. 55, as to registration of 
lands of Papists ; and ex- 
tended its operations to 
Scotland. 



.00 H J. 

Forfeited to the Crown 
for the use of the 
public. 

mi .TtabnstenSf ^di be 



To take the oaths, and 
register their navr.es 
and lands, before the 
Clerk of the Peace 
for the county, 
which, by the 9th 
Geo. I., cap. 18, 
appear, on the 19th 
February, 1719, to 
have amounted to 
£354,450 6s. 6fd. 
per annum, over 
and above copyhold 
fines. — See under 
9th George. 

One hundred thousand 
pounds levied, from 
23rd March, 1723, 
for the use of the 
public, from all 
such Papists in Eng- 
land, Wales, and 
Berwick on Tweed, 
as were eighteen 
years of age — over 
and above the dou- 
ble taxes to be paid 
by them. 



Repealed or in Force. 

Repealed by 19th 
Geo. III., c. 44 

(1797), s.,jk) 



i 2 



116 



THE HISTORY OF 



CHAP. IV. 

Sect. 4. 



Religious 
opinions. 



Jill yd e gj?i:A nottBioqioO hi tesT erij-.lo l«9qaa odT p 
3'joicf lo^f ££iol>9s*it enor^iisi "to 'irrov/jl fi/ sbfUfr obrfcte 

SUMMARY AS TO TOLERATION AND RELIGIOUS OPINIONS. 

Before we pass from this matter of penal laws, it 
may not be undesirable to review, in outline, the history 
of those enactments which have now placed religious 
freedom upon a different basis than ever it had pre- 
viously stood in this country. 

The Revolution in 1688 was the first step towards 
the attainment of this mighty result. The 1st of Will, 
and Mary, cap. 18, is entitled, "An act for exempting 
" their majesties' Protestant subjects dissenting from 
" the church of England from the penalties of certain 
" laws." Its preamble states, that " some ease to scru- 
" pulous consciences, in the exercise of religion, may 
" be an effectual means to unite their majesties' Pro- 
" testant subjects in interest and affection." Noncon- 
formity no longer exposed any one to an ecclesiastical 
suit ; but whatever might appertain to the " exercise of 
" religion" — whether by preaching, administering sacra- 
ments and other ordinances — was allowed By the 
19th Geo. III., cap. 44 (a.d. 1779), this act was de- 
clared a public one, and, therefore, a part of the English 
constitution. 

By the 52nd Geo. III., cap. 155 (1812), Wesleyan 
Methodists, who do not style themselves " Dissenters," 
were placed under the regulations and protection pro- 
vided by the Toleration Act. The word <c Protestants " 
being the only term used in the act. 



CHURCH LAWS. 



117 



The repeal of the Test and Corporation Acts, by the chap. iv. 
9th of Geo. IV., cap. 17, in 1828, was the next mighty Religious 

opinions. 

stride made in favour of religious freedom. For more 
than 150 years, Protestant dissenters had been denied 
a place in municipal corporations, although they had 
never been excluded a seat in parliament. The 
anomaly and reproach have ceased to dishonour the 
statutes of our country. 

Next followed the admission of Roman Catholics 
into the senate, by the 10th George IV. (1829), 
cap. 7, extracts from which will be found in the Ap- 
pendix. 

Each one of these three measures cost immense 
pains, anxiety, and expense to bring about. In every 
instance the most strenuous opposition was raised 
against them. In the case of the repeal of the Test 
and Corporation Acts, the then government was op- 
posed to the relief. But the resolution proposed by 
Lord John Russell, in the House of Commons, having 
been adopted by a majority of forty -four, the govern- 
ment yielded all further opposition. 

It is due to historic truth to refer to another legisla- 
tive measure. It is the 9th and 10th Vict., cap. 59, 
and refers to religious opinions. The laws it abolished 
are given in the preceding tabular statement, so far as 
they apply to distinct previous acts. There are several, 
however, not mentioned therein. For instance, it 
abrogates a statute of the 54th and 55th Henry III., 
(and who, by the bye, except Geo. III., was the only 
English sovereign that sat upon the throne more than 



118 



THE HISTORY OF 



C se A ct4 IV ' fif ty y ears >) in 1271 > against the Jews.- It also repeals 
Religious thirty other statutes against Catholics, Nonconformists, 

opinions. 

Jews, and others, who, for holding about thirty-five or 
forty different " religions opinions" might, at any time, 
have been punished by various laws, some of which 
had slumbered nearly six hundred yea#? X$ b$\o\a$ *» 
The research after these laws had been entrusted to 
a commission, issued by the government of 1845, of 
which the chancellor, Lord Lyndhurst, was one of its 
members, and who introduced and carried through the 
Lords this splendid memorial of the dispositions that 
then ruled the cabinet. It did even more : it placed 
the Jews, "in respect to their schools, places for 
" worship, education, and charitable purposes, and 
u the property held therewith," on the same footing 
as the Protestant dissenters, i.e., granted them full 
toleration. 



J ews 
relieved. 



ik oi si dotudo 9ili ni qodaid oddr J> ,3^8 e 0K .ce.a lo 
aejjoii ni tad ¥ 8*89hq "io don9d edi evods b9taT9l9 ** 

SECTION V. — THE PRIESTHOOD. 

A distinction has always existed, not only between 
. priests and people, but among ecclesiastics themselves. 
There were "the religious" and the " secular clergy." 
The former belonged to monastic institutions ; took 
vows of celibacy, perpetual poverty, and cheerful 
obedience to the superior of their order. " The secular" 
were such ecclesiastics as did not fasten around them- 
selves these heavy iron chains, but who were, nevertheless, 
subject to the laws of the church ; such are archbishops, 
bishops, deans, and the whole body of the clergy. 



CHURCH LAWS. 



119 



.1)9/9X131 



The distinction between priests and people is thus 9ft^il?r 
fixed by canon. " To us it is said by our Lord, j Ye are me order of 

- : i «• priestliood. 

" the salt of the earth.' If, then, Christian people are ^ no 9 ^ 
" God's meat, and we the salt, then shall the people, by 
"the Divine assistance, by our means be with pleasure 
" enjoyed by God. As the bishops are in the stead of 
" the apostles in the assembly of the saints, so are the 
" mass priests in the stead of Christ's disciples. The 
"bishops have the order of Aaron; the mass priests 
" the order of his sons. It behoves you always to be 
mindful how high the dignity of the order is, and the 
" consecration and the anointing of your hand which 
" ye received from the bishop when ye took orders/' 

The order of priesthood, is the highest spiritual 
distinction. It is per se, complete in itself. vYhatever 
official dignity may be possessed by a priest, adds 
nothing to his sacerdotal character. Thus, the canon 
of a.d. 740, says, " the bishop in the church is to sit 
" elevated above the bench of priests, but in the house 
" let him know himself to be a colleague of the priests." 

Another canon, made more than two hundred years 
after, viz., in 957, declared, "There is no more between 
" a bishop and a priest, but that the bishop is appointed 
" to ordain, to bishop children, and to hallow churches, 
" and to take care of God's rights, for they would 
" abundantly be too many if every priest did this ; he 

Ti>luy98 9flx -*I9i)10 HSJflj 10 10I"I9TJJj2 9Ilt Ot 9909iu9UO 

" hath the same order, but the other is more honourable." 

=Jliyilj UillJOXB 119j2fit JOH JjIj!) 3J3 80lJ8J5I39lO99 1191/3 9*I C *W 

The question is repeatedly asked, — Does ordination, Sacredcim- 

1 racter of the 

or conferring the order of the priesthood, impart any ° rder " 

spiritual character ? The old canons reply, it does. 

/^idi'j 9rij to /jjou 9loriw silJ _buj5 fcn&sh f >qoi{8id 



120 



THE HISTORY OF 



chap. iv. " The sacred order is to be conferred upon worthy 
The priest- " m © n and in a worthy manner, because other sacra- 
canon, " ments are conferred by hhn that is ordained." And 

A.D.1287. 

a.d.1281. another canon more explicitly says, "Whereas, accord- 
" ing to theological doctors, the clerical army is fortified 
" with seven orders, by every one of which a character* 
" is impressed on the soul, and an increase of grace 
" received." 

ad. 1362. This essentially dangerous dogma has virtually been 
set aside by the 25th article of the church, which says, 
" There are two sacraments ordained of Christ pur 
"Lord in the Gospel, baptism and the Lord's supper. 
" Those live, commonly called sacraments, i.e., con- 
" firmation, penance, orders, matrimony, and extreme 
" unction, are not to be counted for sacraments of the 
" Gospel, being such as have grown partly of the 
" corrupt following of the apostles ; partly are states of 
U life allowed by the Scriptures." " They have not 
" any visible sign or ceremony ordained of God." 

External If from the assumed sacredness of a person because 

appearances 

hooIi epncst ne Dears a particular office, we turn to the external 
form in which both the person and the office were 
presented to the people, we shall find that just in pro- 
portion as the person lost moral elevation, so his office 
was loaded with outward ceremonies. In the ancient 
canons we have innumerable enactments as to priest's 
apparel, both in public and at the altar — the tonsure, 
or crown, as it was called. So late as 1342, a canon 
refers to the " bishop's barbers," whose duties were to 
see that the cut of the clerk's hair was precisely canonical 



CHURCH LAWS. 



121 



before he saw the bishop. Among the heathens, the chap. iv. 
several modes of cutting or shaving the hair were The priest-" 

. hood. 

tokens of devotion to different idols. The Danes intro- 
duced the custom into England ; but a canon, in 960, 
during King Edgar's reign, forbid " scandalous shavings 
" of the hair." By the 74th canon of 1603, " no 
" ecclesiastical person shall wear any wrought nightcap, 
" nor any light-coloured stockings." 

It would have proved a vain attempt to have com- celibacy of 

the priest- 

menced with a positive interdiction of priestly marriage. hoocL 
By degrees, the matter has been managed. In 740, 
we have this decree. The canons teach, " that if any 
" man marry a widow, or an abandoned woman ; or if he 
" marry a second wife, he never be made deacon or priest." 
Another canon of the same date says, " ~No priest shall 
" ever permit any woman [under the pretence of her 
" being a sister] to dwell with him in his own house." 

The state of morals induced by these and many sub- 
sequent laws of a similar description, will be best seen 
by the canon of a.d. 1009. It says, " We command 
u and charge all God's servants, and especially the 
" priests, that they obey God. Let them earnestly 
"consider that they cannot lawfully cohabit with a 
" wife : yet this is worse, that some have two or more ; 
u and some, though they dismiss her whom they 
u formerly had, afterward take another, the former 
H living. Let him who will desist from this, and preserve 
" his chastity, obtain God's mercy ; and as an addition to 
" worldly honour we decree that he be equal to a thane, 
" both as to his weregild and to his rights in his life- 



122 



THE HISTORY OF 



° sed; 5 1V * " tnne » an d at his burial ; and let him -that is averse to 

The priest- " that which benefits his order, be deprived of his 
" honour both in relation to God and the world." 

a C d u 1237. Matrimony of priests was this year denounced, for 
two reasons— " The perdition of souls, and lessening the 
"goods of the church." Wives and children were, 
therefore, deprived of any goods which priests might 
have left; but, instead, "they were to be given to the 
" church." j v^idoiq lfi9g 

ajdulmo. The 31st Henry VIII., cap. 14, sec. 19, declared the 
priest that lived with his wife, or with whom he had 
contracted matrimony ; and the woman also, to be 
^alsfeo vjod ot no&i9q yub limbs 9il 9toi9d t qoif aid 41 
The evils of this system are patent in the history of 
Europe. Happily, the Reformation, in a measure, 
purged the nation from the innumerable mischiefs that 
could not fail to arise from this outrage upon humanity 
and insult to the purposes of heaven. The 32nd article 
(a,i>. 1562) states, " Bishops, priests, and deacons, are 
" not commanded, by God's law, either to vow the estate 
" of single life, or to abstain from marriage. Therefore 
" it is lawful for them, as for all other Christian men, 
" to marry at their own discretion, as they shall judge 
" the same to serve better for godliness." 
statute, The statute of the 2nd and 3rd Edward VI., cap. 21, 

A.D. 1548 

and 1549. se t -aside " all and every law and laws positive, canons, 
" constitutions, and ordinances made by authority of 
" man only, which do prohibit or forbid marriage to 
"any ecclesiastical person or persons whatsoever." 
This act was enlarged by the 6th of Edward, but both 



CHURCH LAWS 



123 



were repealed, immediately upou the accession of Queen CI | A ^ l Y - 
Mary : nor was it until the 1st of James, cap. 25, (a The priest . 
period of fifty years having thus intervened,) that the 
last statute of Edward was revived and made perpetual. 

The ordination of priests to spiritual offices was at a 0r p5e t s i t ° s n of 
very early period assigned to bishops and other ministers. aStS 
" Let not a bishop ordain clerks without a council of 
••priests." •'Enquiry into former life," was also a.d. 747. 
enjoined, as well as " into his present probity of manners 
'• and knowledge of the faith." These two principles 
have always been retained in the church; and are 
broadly stated in the latest canons. Thus, " The a.d. im. 
" bishop, before he admit any person to holy orders, 
■• shall diligently examine him in the presence of those 
- that shall assist him at the imposition of hands. Pro- 
•• videcl that they who shall assist the bishop in examin- 
•• inq and laying on of hands* shall be of his cathedral 
•• church, or other sufficient preachers of the same diocese 
•' to the nunuer of three, at the least : and if any bishop 
" or suffragan shall admit any to sacred orders, who is 
•• not so qualified and examined, the archbishop of his 
" province, having notice thereof, and being assisted 
•• therein by one bishop, shall suspend the said bishop 
•• or suffragan, so offending, from making either deacons 
•• or priests for the space of two years lo 

With one exception, about to be referred to, this 

* In. the form of making priests appointed in Edward the Sixth's first 
and second Prayer Book, it is prescribed '' that the bishops, with the priests 
•• present, shall lay their hands severally upon the head of every one that 
•• receiveth orders." — Liturgies of Edward VI., published by the Parker 
Society, pp. 1 79, 348. 



124 THE HISTORY OF 

chap. iv. order of priesthood, thus constituted,. is the only one 
The priest- recognised by the church in England. The .twelfth 
canon of 1603 says, "Whosoever shall hereafter affirm 
" that it is lawful for any sort of ministers and lay 
" persons, or of either of them, to join together, and 
" make rules, orders, or constitutions, in causes eccle- 
" siastical, without the king's authority, and shall submit 
" themselves to be ruled and governed by them, let 
" them be excommunicated, ipso facto, and not be 
" restored, until they repent and publicly revoke those 
" their wicked and anabaptistical errors." 

The exception relates to the orders of the church of 
Rome. These are by statute law and by the common 
custom of the church of England declared and admitted 
to be valid. The 14th Charles II., cap. 4, sec. 14, 
prohibits every person from administering the sacra- 
ments, " before such time as he shall be ordained a 
" priest, according to the form and manner by the 
" Book of Common Prayer prescribed, unless he shall 
"formerly have been made by episcopal ordination." 

The Moravians, also, by the 22nd Geo. II., cap. 30, sec. 
5, (a.d. 1749,) are recognised as a " Protestant episcoj^al 
" church," having " a bishop or pastor;" but then it 
may be doubted whether this act is not restricted to the 
American colonies ; and by the 10th George IV., cap. 
7, sec. 24, " The Protestant episcopal church of England 
" and Ireland," as also " the Protestant presbyterian 
" church of Scotland, and the doctrine, discipline, and 
" government thereof," are both stated as being " esta- 
" blished by law," 



CHURCH LAWS. 



125 



Prior to ordination, the minister must subscribe the chap. iv. 

Sect. 5. 

three following articles :— 1 ~~The fljpjt 

" 1. That the king's majesty, under God, is the only 
" supreme governor of this realm, as well in all spiritual 
" or ecclesiastical things or causes, as temporal ; and 
" that no foreign prince, person, prelate, state, or 
" potentate, hath or ought to have any jurisdiction, 
" power, superiority, pre-eminence, or authority, eccle- 
" siastical or spiritual, within the realm. 

" 2. That the Book of Common Prayer, and of 
" ordering of bishops, priests, and deacons, containeth 
" in it nothing contrary to the Word of God, and that 
" it may lawfully so be used ; and that he himself will 
" use the form in the said book prescribed in public 
" prayer and administration of the sacraments, and 
" none other. 

" 3. That he alloweth the book of articles of religion 
" agreed upon in convocation, 1562; and that he 
" acknowledgeth all and every the articles therein 
" contained, being in number thirty-nine, besides the 
" ratification, to be agreeable to the Word of God." 

He must also add this declaration : — " I do willingly 
" and ex animo subscribe to these three articles above- 
" mentioned, and to all things contained in them." 
Every priest is thus brought under a double set of 
promises ; one relating to the state (first article), and 
the other to the church (second and third.) 

The qualifications of persons about to be ordained are 
various. Deacon's orders cannot be conferred till the 
person has attained the age of twenty-three. Priests 



126 



THE HISTORY OF 



chap. iv. must be twenty-four at the time of ordination. They 
The priest- must have taken " some degree of school in either of the 

hood. 

" Universities ; or be able to yield an account of their 
" faith in Latin, according to the articles of 1562, and 
" to confirm the same by sufficient testimonies out of 
" the Holy Scriptures." So the 34th canon, of 1603, 
enjoins. Statute law has added, " or have special gift 
" and ability to be a preacher," 13th Elizabeth, cap. 
12, sec. 5. They must, by the 33rd canon, have a title 
to some preferment, unless the bishop shortly after 
admit him to a curacy or benefice. If ordained without 
these titles, the bishop will be bound " to maintain him 
" with all things necessary." 

If the reader desires to ascertain the progress made 
in the legally required proofs of the moral and intel- 
lectual qualifications of the priesthood, he will obtain 
the illustration by contrasting the laws (canon and 
statute) just stated, with those of former periods. In 
1281, the constitution of Peckham complained of " the 
" ignorance of priests." " As a remedy, we ordain that 
" every priest do, four times in the year, expound to the 
" people the fourteen articles of faith, the ten com- 
" mandments of the decalogue, the two precepts of the 
" Gospel, or love to God and man, the seven works of 
" mercy, the seven capital sins, and the seven sacra - 
" ments of grace." And that there might be no 
mistake or excuse, the canon briefly summed them up. 

The recital of the whole exposition would be tedious. 
Its merits may, however, be easily ascertained, by the 
following explanation of "Honour thy father and 



CHURCH LAWS, 



127 



" mother." It says, " In this we are explicitly com- chap. w. 
" manded to lionour our parents, both in temporals and The priest- 

hood. 

H spirituals ; yet not our carnal father and mother, but 
B our spiritual, is here to be understood ; so that father 
" signifies the prelate of the church, whether mediate 
" or immediate ; mother signifies the church, which 
fl hath all true Catholics for her sons." It also refers 
to the sacraments. The administration of "extreme 
" unction" was enjoined to the dying, " and to those in 
" a frenzy or alienation of mind, for we believe, and 
" have learned by experience, that the receiving thereof 
H contributes to their getting a lucid interval, or at 
" least their spiritual good, upon condition that they be 
" sons of predestination, how frantic soever they be." 

In 1466, these injunctions were repeated, verbatim, et 
literatim. Well might Johnson, in his " Ecclesiastical 
Laws," add in a note, under these last-mentioned con- 
stitutions, " It is sad to consider, that in [nearly 200] 
" years' time, the English clergy had gotten no better 
" constant instructions for the people than those of 
" Archbishop Peckham." 

Could the " ignorant priests" who, 569 years ago, 
" misled rather than taught" the people, witness the 
mighty changes since wrought among " the English 
" clergy," they would stand amazed. Streamlets of 
light have been silently pouring in from various 
quarters upon that body, and prepared it to become a 
blessing, and not, as then it proved, a curse to mankind. 

To return to the subject of ordination of priests. 
This is performed in the manner prescribed by law, 



128 



THE HISTORY OF 



chap. iv. and is contained in the Book of Common Prayer. 

Sect. 5. J 

The priest- Every edition does not contain the form, but the larger 
copies generally have it. By this form, the ordination 
Assumed f priests proceeds upon the assumed concurrence of 

concurrence A *■ 1 

of the people. ^ people Thig nom i na l (f or it is Only SO) right IS 

thus expressed in the first and second Prayer Books of 
Edward VI.,* and is retained in the Common Prayer 
Book of the present day : — 

" And then the bishop shall say to the people, - Good 
" people, these be they whom we purpose, God 
" willing, to receive this day unto the holy office of 
4t priesthood. For after due examination we find, not 
" the contrary, but that they be lawfully called to their 
" functions and ministry, and that they be persons meet 
" for the same. But yet, if there be any of you, which 
" knoweth any impediment or notable crime in any of 
" them, for the which he ought not to be received to 
" this holy ministry, now, in the name of God, declare 
" the same.' Then the bishop shall say unto them 
" which are appointed to receive the said office, as fol- 
" loweth, (among other things), ' And that this your 
" promise shall move you to do your duties, ye shall 
" answer plainly to these things, which we, in the name 
" of the congregation, shall demand of you touching the 
" same.' " 

The bishop having received the replies, and invoked 
" strength and power " from Almighty God, that each 
one may accomplish his work, it is added : — 

*" Liturgies of Edward VI.," published by the Parker Society, 
pp. 174-176, 344-346. 



CHURCH LAWS. 



129 



" After this, the congregation shall be desired secretly bw&|V. 
" in their prayers to make humble supplications to God T!u . ))rH ..,, . 
" for the aforesaid things, for the which prayers there 
" shall be a certain space kept in silence." 

We have referred, so far, to the ordination of & priest 
only, bat no one is so appointed until after he has been 
ordained deacon. At one time, it was necessary he 
should have remained deacon one whole year, "to the 
" intent he may be perfect ; " " whereof if he be found 
" faithful and diligent, he may be admitted by his 
" diocesan to the order of priesthood." But by the 32nd 
canon of 1603 the rule is relaxed. Although " no bishop 
" can make any person, of what qualities or gifts soever, 
" a deacon and minister in one day," it yet says, " Not 
" that always every deacon should be kept from the 
" ministry for a whole year, when the bishop shall find 
" good cause to the contrary ; but that there being now 
" four times appointed in every year for the ordination 
" of deacons and ministers, there may even be some time 
" of trial of their behaviour in the office of deacon, before 
" they are admitted to the order of priesthood." 

The difference between a priest and deacon consists 
in the deacon being appointed to assist the priest in 
divine service. Anciently he said the responses and 
performed such duties as now are discharged by parish 
clerks. His duties consist in visiting the sick, reading 
the Scriptures and homilies in the church, teaching the 
catechism, baptising infants, and preaching, if specially 
licensed by the bishop to do so. He cannot pronounce 
the absolution. To the deacon, the bishop at ordination 

k 



130 



THE HISTORY OF 



C sect > '5 IY ' sa y s ' " ^ a ^ e ^ 10U authority t0 rea d the Gospel, and to 
The priest- " preach." To the priest it is said, " Receive the Holy 

hood. 

" Ghost : whose sins thou dost forgive, they are forgiven ; 
" and whose sins thou dost retain, they are retained." 

The church is said to be an army,' and has its staff, as 
well as its main body. " Faithful men," constitute the 
latter. Priests, (including dignitaries,) the former. These 
are especially placed under certain laws, in relation 
to each other. The 53rd canon of 1603 forbids 
preachers " to impugn or confute any doctrine delivered 
" by any other preacher, in the same church, or in any 
" church near adjoining, before he hath acquainted the 
" bishop of the diocese, and received order from him 
" what to do in that case." By this means, " offence 
" and disquietness unto the people " are sought to be 
prevented. " Once to abuse " this rule, exposes the 
preacher to the visitation of the bishop. 
CO p" y ° f The 54th of the same canon says, " If any man 
" licensed heretofore to preach, by any archbishop or 
" bishop, or by either of the Universities, shall at any 
" time from henceforth refuse to conform himself to 
" the laws, ordinances, and rites ecclesiastical, esta- 
" blished in the church of England, he shall be admo- 
" nished by the bishop of the diocese, or ordinary of the 
" place, to submit himself to the use and due exercise 
" of the same. And if, after such admonition, he do 
" not conform himself within the space of one month, 
" we determine and agree, that the licence of every 
" such preacher shall thereupon be utterly void and 
" of none effect." 



CHURCH LAWS. 



131 



But though the bishop may thus silence the priest, C |^- 5 IV - 
the priest cannot escape from under the power of the The priest . 

hood. 

bishop. The 76th canon therefore says, " JNo man denunciation 

of orders. 

" being admitted a deacon or minister, shall from ^j^gjg 
" henceforth voluntarily relinquish the same, nor after- Modem law. 
" wards use himself in the coarse of his life as a layman, 
" upon pain of excommunication. And the names of 
" all such men so forsaking their calling, the church- 
" wardens of the parish where they dwell shall present 
" to the bishop of the diocese, or to the ordinary of the 
" place, having episcopal jurisdiction." 

These laws may seem to place the clergy under awful Ancient laws, 
restraints. But a reference to other ages of the 
church will show that the same rules have been carried 
out. 

Thus, in a.d. 734, a canon says, " If a priest or deacon, a d. 734. 
" being ejected by his proper bishop, for his manifest 
" crimes, [disobedience was one,] presume to minister in 
" another church, let him be expelled by the bishop of 
" that diocese, as soon as it is known, and so let him not 
" be settled in any mansion of the churches, but be 
" always a wanderer and vagrant, till being humbled by 
" long affliction, he return to undergo the law of the 
" church." 

We have another ancient law in 960, which says, canons, 

7 J ' A.D. 960 

" And that no priest of his own accord desert the church 
" to which he has been blest and married." 

The canon of a.d. 1 102 says, " Monks, or clergymen, a.d. 1102. 
" who have forsaken their order, shall either return or 
" be excommunicated." They may, however, be de- 

k 2 



132 



THE HISTORY OF 



chap- iv. prived. In 1849, the Rev. Mr. Shore quitted the 
The priest- church, and was, for the offence, prosecuted by the 

hood. 

bishop of Exeter^ and imprisoned for non-payment of 
costs. Relief for the future was sought, by a bill 
brought into parliament, which gave " a person in 
" holy orders" all the benefit of the Toleration Act for 
nonconformity. But it failed, as it deserved to do ; 
for it provided that such person, having declared him- 
self a dissenter, it "should be attended with the same 
f consequence as a sentence of deprivation of his pre- 
u ferment, and of deposition from holy orders." The 
law, therefore, remains as it was; i.e., clergymen 
cannot relinquish orders without exposure to prosecution 
and probable ruin. 
Deprivation There are nearly thirtv different offences which 

ot orders. J J 

expose any priest to the forfeiture of his ecclesiastical 
position. Some of these offences have been created by 
canon, and others by statute, law. 
Those of canon law are — 

h Disclosing confessions. (See " Confession," p. 145.) 

2. Wearing arms. 

3. Non-residence. 

4. Demanding money for sacraments. 

5. Intrusion into another priest's benefice. 

6. Violating a sanctuary. 

7. Concubinage. 

8. Wearing an irregular habit. — Canon, a.d. 1603, 
art. 74. 

9. Keeping fasts other than those appointed by law. 
—Ibid. art. 72. 



CHURCH LAWS, 



133 



10. Being* present at sermons or prophecies in market chap. iv. 

Sect. 5» 

towns. — Canon, a.d. 1603, art. 72. The priest- 

. hood. 

11. Holding private conventicles. — Ibid. art. 73. 

12. Attempting to cast out devils without bishop's 
licence. — Ibid. art. 72. 

13. Refusing to catechise children every Sunday. — 
Ibid. art. 59. 

14. Receiving to the communion out-parishioners, or 
baptising their children. — Ibid. art. 57. 

15. Refusing to christen or bury, if the requirements 
in the Book of Common Prayer be complied with.— 
Ibid. art. 68. 

Those of statute law are — 

1. Simony; or selling benefices for money, benefit, 
or profit. — 31st Eliz., c. 6. 

2. Want of orders. — Laymen could be, and were 
formerly presented to livings ; but by 13th and 14th 
Charles II., c. 4, sec. 14, " henceforth no person shall 
" be capable to be admitted to any benefice or ecclesi- 
" astical dignity or promotion before he is ordained a 
" priest." 

3. Illiteracy. — This is malum in se. 

4. Non-age.— 13th Eliz., cap. 12. 

5. Conviction of felony. — 23rd Henry VIII., cap. 1, 
sec. 6, and cap. 11, sec. 3. 

6. Refusing to use the Book of Common Prayer. — 
2nd and 3rd Edward VI., cap. 1. 

7. Not reading the Thirty -nine Articles in the church 
of which he has the cure, or maintaining any doctrine 
contrary thereto . — 13th Eliz., cap. 12. 



134 



THE HISTORY OF 



chap. iv. 8. Not being admitted to administer the sacraments 

Sect. 5. ° 

The priest- within one year after induction. — 13th Eliz., cap. 12. 

hood. 

9. Depraving Common Prayer Book. — 13th Eliz., 
cap. 12. 

10. Infidelity — such as heresy, schism, &c. — 29th 
Charles II., cap. 9. 

1 1 . Vices — such as drunkenness, incontinence. 

12. Disobedience to the laws and constitutions of the 
church. — {Burn, 143.) — Agreed to by all the justices, 
2nd James I. 

13. Perjury. 

14. Dilapidations or alienations. 

By the 122nd canon of 1603, it is provided that in 
all cases of deprivation of orders, the sentence must be 
pronounced by the archbishop or bishop, assisted by 
such other ecclesiastics as he may choose to select. But 
suspension from office, for a limited period, or from dis- 
charging any office in any particular diocese or pro- 
vince, may be pronounced by the ecclesiastical judge, 
be he layman or clergyman, before whom the trial took 
place. 

Persons in holy orders may not sit in parliament. — 
41st Geo. HI., cap. 63, and 10 Geo. IV., cap. 7. 

Nor be engaged in trade or trading companies. — 
1st and 2nd Vict., cap. 10 ; and 4th and 5th Vict., cap. 
14, sec. 2. 



CHURCH LAWS. 



135 



SECTION VI. RELIGIOUS CEREMONIES. 

" Christianity entered not anywhere, with an exter- chap. iv. 
" nal discipline."* Principles took precedence of rites. ~ 
The common sense of mankind, has, however, been 
most grievously insulted by some theologians attempt- 
ing to prove that ceremonies are as essential as prin- 
ciples. 

" Ceremonies are the leaves that defend the blossoms 
" and the fruit, but if they grow over-thick and rank 
" they hinder the fruit from coming to maturity, and 
" then the gardener plucks them off." — Archbishop 
BramhaUs Works, vol. iii. p. 170. 

The fondness men have ever manifested to render 
religious observances and obligations as easy as pos- 
sible, has led them into a ready compliance with the 
external forms of any system of religion. They have 
but to be cheated into the belief that the " outward 
" sign" declares the fact of " an inward grace," and in 
nothing will they evince so cheerful and ardent a com- 
pliance with prescribed rules, as when required to 
observe religious ordinances. Let those forms be never 
so numerous, unmeaning, absurd, or expensive, only 
let them be deemed indicators of principles, — essential 
to salvation, or even passports to a status in society, — 
and crowds of conformists will hasten to the ob- 
servance. 

* Lord Chief Justice Hale, as cited by Lord Hardwicke. — Hardwicke 
Reports, by Lee, p. 336. 



THE HISTORY OF 



A.D. 696. 



C sect'6 IV " Baptism. — The first religious ceremony legally im- 
' Religious posed upon the Christian church was the rite of baptism. 

ceremonies. 

Baptism. Thus, among the earliest canons, we find it enacted : — 

Canons, 

ad. 693. fi L e t a child be baptised within thirty nights. If it be 
" otherwise, let the father make satisfaction with thirty 
" shillings. If it then die without baptism, let him 
" make satisfaction with all that he hath." 

Fines continued to be imposed for omission. Among 
other offenders was the priest, who, " If so drunk" says 
the canon of a.d. 696, " that he could not baptise," was 
to be suspended from his office during the pleasure of 
the bishop. 

Nor did the parent escape punishment for allowing 
his child to remain and die " a heathen." How deeply 
sunk in immorality must have been the priesthood, 
and in ignorance the people, ere such a law as this 
could have passed ! The next was as absurd. It says, 
" Let the parent whose child is dead without baptism, 
" through his neglect, do penance one year, and never 
" live without penance. If the priest, whose duty it 
" was, neglected to come, though asked, let him be 
" chastised by the doom (law) of the bishop for the 
" damnation of a soul. Nay, it is commanded that all 
" men should snatch a soul from the devil by baptism." 

Five hundred years wrought no change upon the 
minds of priests or people. Drops of water, externally 
applied, could, it was believed, save a soul ! Rome 
taught, and the people believed, the absurdity. Othobon, 
the legate from the Pope, in 1268, confirmed the false- 
ajTiS's. hood. He commences his constitutions thus ;- — 



Canons, 
A.D. 740. 



CHURCH LAWS. 



137 



ceremonies. 



Canons, 
A J). 1281. 



" Baptism is known to be the first plank which brings chap. iv. 
" those that sail through this dangerous world to the ""Religious 
" port of salvation. And (since no one ought to die 
" without receiving this sacrament) being administered 
" in the form of the church, it is effectual to salvation." 
\\ The first plank of salvation !" Who that ever trusted 
to it escaped shipwreck ? 

That the efficacy of baptism lies not in its being 
administered by the priest, is attested by the canon, 
which says, " It is allowed to laymen, or women, to 
" baptise children in case of inevitable necessity ; and 
" such baptism is evidently sufficient to salvation, if the 
" due form be observed." 

The delusion has been kept up. The Book of 
Common Prayer, prepared by Archbishop Cranmer, in 
the time of Edward VI., (said to have been " con- 
" eluded by the aid of the Holy Ghost,") declares 
baptism to be " a holy sacrament." And in the second 
Book of Common Prayer, issued by legal authority 
during the same reign, it is declared that children, by 
baptism, " be regenerate and grafted into the body of 
" Christ's congregation." The Common Prayer, now 
in use, employs stronger terms. 

A penal sanction still hangs over the head of the 
father or mother who neglects to have this rite per- 
formed. Either one may be dragged into the eccle- 
siastical court, according to the unrepealed statute of 
the 5th of Elizabeth, cap. 23, sec. 13, " for refusing to 
" have his or their child baptised." 

More than this, the Rev. — Gorham was refused 



138 



THE HISTORY OF 



chap. iv. induction into a benefice by Dr. Philpotts, bishop of 
R ehgious Exeter, for no other reason than that he did not believe 

ceremonies. . 

baptism, per se, conveyed any spiritual benefit. The 
case having been argued at great length in the court 
of Arches, the judge (Sir Herbert Jenner Fust) 
decreed, that the bishop was right in refusing to induct 
a clergyman not sound in the faith. Seldom has a 
theological question stirred up more legal strife. 
Against the judgment of the Arches court an appeal 
was made to the judicial committee of the privy council ; 
and by them it was reversed. A prohibition to restrain 
the archbishop of Canterbury and the dean of the 
Arches court from carrying the judgment of the 
privy council into effect, was then moved for in the 
court of Queen's Bench, and refused. A second 
application was made to the court of Common Pleas, 
and there also refused ; a third time the court of 
Exchequer was applied to, and a rule nisi having been 
in this last instance granted, which in the two other 
courts had been denied, the cause came on for 
argument, and, after considerable discussion, was there 
also refused. It is said that the costs of this suit on 
both sides amounted to £80,000. 
F as t s . Easts. — It was penal, according to canon law, to eat 
a C d 74o ^ es ^ on f as ti n & days. " Let no one presume to break 
" publicly enjoined fasts, lest he incur the wrath of 
" God." 

a.d. 717. One of the solemn fasts was declared to be "the 
'* day of the deposition (death) of St. Augustine, the 
" archbishop and confessor, (who being sent to the 



CHURCH LAWS. 



139 



" nation of the English, first brought the knowledge of chap. iv. 

& ' » & Sect. 6. 

" faith, the sacrament of baptism, and the notice of the Religious 

i • i i n ceremonies. 

" heavenly country,) which is the seventh oi the 
M kalends of June," 

In another part of this same canon, fasting by means 
of the psalmody of others is allowed, although some- 
what condemned. It states, " that a rich man, desiring 
" speedy reconciliation might be granted him for gross 
" sins, affirmed by letters that that sin of his was so 
" fully expiated, that if he could live three hundred 
" years longer, his fasting was already paid by the 
" psalmody, fasting, and alms of others. 5 ' 

To recite all the legalised follies committed upon this 
subject, would tire the patience of the reader. He 
will, however, observe that canon law has never brought 
any relief upon this subject. It has been left for the 
statute to clear away the rubbish. Thus, the 5th and 
6th Edw. VI., cap. 3, declared that many of the saint- /i^s. 
days formerly kept should no longer be observed " as 
" holy days." Still, after the reduction, there remained 
twenty-eight days in the year which " were commanded 
" to be kept." 

Elizabeth's parliament went a step further, and cut up 
the principle. A law, entitled, " For the maintenance a d. 1.564. 
" of the navy," declared that whoever, by preaching, or 
" teaching, shall notifie, that any eating of fish, or for- 
" bearing of flesh, is of any necessity for the saving of 
" the soul of man, or that it is the service of God, other- 
" wise than as other politick laws are and be, such 
" persons shall be punished as spreaders of false news," 



140 



THE HISTORY OF 



Sect. 6 



Religious 
ceremonies. 
Anointing. 



chap. iv. i.e., stand in the pillory, and have both the ears cut off, 
or pay a fine of £100. — 5th Elizabeth, cap. 5. 

Anointing. — " Holy oil," as it was called, was used 
a.i?°957. both at baptism and the visitation of the sick. " The 
" priests shall have oil hallowed distinctly for children 
" and for sick men, and solemnly anoint the sick in 
" their bed." 

In the order of baptism, as set forth in King Edward 
the Sixth's reign, it is required, after the priest had thrice 
dipped the child in water, that " he anoint the infant 
" upon the head, saying, ' Almighty God, the Father 
" who hath regenerate thee by water and the Holy 
" Ghost, and hath given unto thee remission of all thy 
"sins, vouchsafe to anoint thee with the unction of 
" His Holy Spirit." 

In his second Book of Common Prayer, anointing 
was omitted ; but, instead thereof, the priest was to 
" make a cross upon the child's forehead." 

At the visitation of the sick, that rubric states, " if the 
" sick person desire to be anointed, the priest shall 
" anoint him upon the forehead or breast only, making 
" the sign of the cross." 

This was omitted in Edward's second Prayer Book, 
and has not again been inserted. 
Consecration. Consecration. — Things, as well as persons and 
places, were deemed hallowed among the Jews. It is, 
however, a remarkable fact, that the priests, under the 
theocracy, never assumed a power by which they could 
communicate a sacred character. All they did, was to 
set things apart from common to religious purposes. 



CHURCH LAWS. 



141 



But dedication to a sacred use did not include the com- chap. iv. 

Sect. 6. 



munication of an inherent spiritual character. "Thus Religious 

• iiT-iPTT at i • ceremonies. 

" saith the Lord oi Hosts, Ask now the priests concern - 
" ing the law, saying, If one bear holy flesh in the skirt 
" of his garment, and with his skirt do touch bread, or 
" pottage, or wine, or oil, or any meat, shall it be holy 1 
" And the priests answered and said, "No. Then said 
" Haggai, If any one that is unclean by a dead body 
" touch any of these, shall it be unclean ? And the 
"priests answered and said, It shall be unclean."* 

It has been reserved for priests under the Christian 
dispensation to invert this order of things. They have 
never declared things or persons ceremonially unclean ; 
but they have declared things or persons inherently 
holy, after passing through a prescribed ritual. Thus 
they have consecrated bread and wine. This was consecration 

^ of bread and 

anciently called " housel" and "the oblation." Now it wme> 
is called the sacrament. 

" Know now that the Lord, who was able to change canons, 

' - to A.D. 957. 

" the bread into his body, in a spiritual manner, he his 
" self daily blesseth bread and wine by the hand of his 
" priests into his spiritual body and blood." 

The priest was himself to bake the bread. " And k <v- ul 
" we charge you, that the oblation which ye offer to 
" God in that holy mystery, be either baked by yourself 
" or by your servants in your presence.' , 

Not only the elements of bread and wine, but bricks, consecration 

of churches. 

stone, timber, and every other material employed in 
erecting churches, receive a spiritual element. What 

* Haggai, ii. 11—13. 



142 



THE HISTORY OF 



chap. iv. that element is, has never been defined. Adroitly it 

Sect. 6. J 



Religious lias been thrown into a mystery. Thus Othobon 

ceremonies. 

decreed — 

A/Rises. 46 The church of God, not differing as to its materials 
" from private houses, by the invisible mystery of dedica- 
" tio-n is made the temple of the Lord, to implore the 
" expiation of sins and the Divine mercy, that there 
" may be in it a table in which the living bread which 
" came down from heaven is eaten by way of interces- 
" sion for the quick and dead." 

It might have been supposed that the simple erection 
of churches, where both the quick and the dead were 
alike benefited, would have satisfied the credulous 
devotee. And so it would, had he been the only person 
interested. But the early canon introduced secular 
advantage along with spiritual benefit. 

a rTnos " Churches shall not be consecrated till all necessaries 
" be provided for the priest and it." And to this day 
this law remains in force. Churches must be endowed 
with a suitable provision for the minister before the 
bishop consecrates. Once consecrated they inalienably 
belong to the church as a corporate body. 

coufessiou. Confession was pronounced "a sacrament;" and 

A.r>. i26i. " since it is like a plank offered us after shipwreck, and 
" the last refuge to them that are passing the waves 
" of this troublesome world, necessary for the salvation 
" of every sinner ; we strictly forbid, under pain of ex- 
" communication, to hinder any one that desires it from 
" having this sacrament freely administered to him." 
It was never to be denied prisoners in gaol. 



CHURCH LAWS. 



143 



But this plank of salvation w^s, by the showing of a chap. iv. 
preceding canon, rendered extremely hazardous. " Let Eeli!lious 

. .. i • i n ceremonies. 

" him [the priest] inquire after usual sins, but not after 
" unusual, unless it be at a distance and indirectly, that 
" such as know may be put into a method of confessing, 
" and. such as do not know may not have an opportunity 
" of learning to sin," (a.d. 1236). 

To trace the whole history of the confessional were 
to exhibit a deeply-stained moral enormity, and such 
as the bitterest enemy of the Christian religion would 
most eagerly pant to read. 

The practical operation of the laws relative to con- 
fession, will be best illustrated by the following facts. 
The first is drawn from the evidence of Drs. Doyle and 
Magaurin (Roman Catholic bishops), before a committee 
of the House of Lords, in 1825 : — 

" Bight Rev. J. Doyle, d.d., examined. 

"Would a priest think himself justified, in case he received in confes- 
" sion a knowledge of an intended crime, to take any measure by which 
' ' he could prevent the execution of that crime ? 

" No ; he cannot, more than the means he uses with the individuals 
" themselves. 

" Could he not warn the person against whom the crime is intended to 
" be committed ? 
" He cannot. 

"Right Rev. James Magaurin, d.d., examined. 

" Are not the parties who commit a murder generally known to the 
" priests ? 

" I do not think they are. 

" Supposing it were stated to him in confession, would the priest think 
" ^ consistent with his duty to divulge any part of a communication 
" which was made to him in confession ? 

" I do not think he would. 



144 



THE HISTORY OF 



CHAP. rv. " Might he not disclose so much of it as would prevent the perpe- 

— — " tration of the crime, without committing the person who has made the 

Religious . „ . , 
ceremonies. confession ? 

" He could not divulge any part of it." 

The second is taken from a pamphlet written by 
a clergyman, the Rev. L. J. Nolan, who had been a 
popish priest. He was converted to the faith of the 
Gospel, and addressed several pamphlets to his Roman 
Catholic fellow-countrymen. He challenged inquiry, 
but no priest responded. He lived several years after 
his publications, but is now dead. His " third pam- 
" phlet," published in Dublin in 1838, at pp. 23-25, 
contains this statement : — 

" But, my friends, the most awful of all considerations is this, — that 
" through the confessional I had been frequently apprised of intended 
" assassinations and most diabolical conspiracies, and still I dared not 
" give the slightest intimation to the marked-out victims of slaughter. 
" But, though my heart now trembles at my recollection of the murderous 
" acts, still my duty obliges me to proceed, and enumerate one or two 
" instances of the cases alluded to. 

" The first is the case of a person who was barbarously murdered, and 
" with whose intended assassination I became acquainted at confession. 
" One of the five conspirators (all of whom were sworn to commit the 
" horrid deed) broached to me the bloody conspiracy in the confessional. 
il I implored him to desist from his intention, but, alas, all advice was 
" useless. No dissuasion could prevail, his determination was fixed, and 
" his only reason for having disclosed the awful machination to his con- 
" fessor seemed to have originated from a hope that his wicked design 
" would be hallowed by his previous acknowledgment of it to a priest. 
" Awful to relate ! yes, awful ! and the hand that now pens it shudders 
" at the record it makes — a poor inoffensive man, the victim of slaughter, 
" died a most cruel death by the hand of ruthless assassins. Oh, my 
" dear Protestant countrymen, you will now naturally ask, whether am I 
" or the perpetrators of the bloody deed most to be censured? — I, who 
" knew the murderers and the murdered previous to the act, — I, who had 
" met the intended victim of slaughter in the public streets, but a short 
f ' time antecedent to his death ? 



CHURCH LAWS 



145 



" I must now proceed to the recital of another case. CHAP. IV. 



Sect. 6. 



Religious 
ceremonies. 



" It is that of a female administering poison to her parent. Her first 
' ' attempt at parricide proved ineffectual, owing to an immediate retching 
14 that seized the man after taking the draught. The perpetrator of this 
" foul deed came to confession and acknowledged her guilt ; but circum- 
" stances proved that she only sought for priestly absolution to ease her 
1 p mind and prepare her for a speedy repetition of the heinous crime. 
" Again she attempted the act, and it proved successful. I was 
" called on to attend the dying parent. The unnatural throes and con- 
" vulsive agonies of the unfortunate man convinced me that the disease 
" was of no ordinary nature. The previous confession of his daughter, 
n who at the time made her appearance, rushed upon my mind, and sug- 
" gested that the parent was a second time poisoned. From what I had 
" known in the confessional, I could not even hint at the propriety of 
" sending for medical assistance, for the Romish doctrine impressed 
" inviolable secrecy on my lips, and prevented my giving the slightest 
" intimation of the malady, whilst the poor parent, unconscious of the 
" cause of his death, died in the most excruciating agonies. Oh, mon- 
" strous system of confession ! Oh ! thou iniquitous tribunal ! Thou 
" cloaker of crimes — thou abettor of wickedness— thou brutal mur- 
" derer!" 



The disclosure of confessions is expressly forbidden, ^^f" ^ 
The canon says, " Let no priest, in any case, out of 
" hatred, anger, or fear even of death, discover the 
" confession of any man, by signs, nods, or words, 
" either in general or particularly, and if he be con- 
" victed of this, let him be degraded, without any hopes 
" of reconciliation." 

Confirmation. — An early canon prescribed that confirmation. 

J * Canon, 

" no one too long remain unbishoped" — unconfirmed. a.d. 960, 

" We ordain that none be admitted to the sacrament a.d. mi. 

" of the Lord's body and blood that is not confirmed, 

" except at the point of death." 

Confession was " to precede confirmation," to which a.d. 1322. 

" let him come fasting in honour to the sacrament. On 



146 



THE HISTORY OF 



chap. iv. "the third day after confirmation, the children were to 

beet. 6. fc 

Religious - " he carried to the church, that their foreheads may be 

ceremonies. ■.""'V " , " . , , 

ie washed in the baptistry, by the priests hand, m 
"honour to the chrism, and at the same time let the 
" fillets be there burned." "Let no child be held at 
" confirmation by its father or mother, that they may 
" know that a spiritual relation is contracted at this 
" sacrament as well as at baptism." This spiritual 
relation, we have shown, not only obstructed, but dis- 
solved marriages contracted or consummated. (See 
chap. iii. sec. 7, " Degrees of Marriage.") 

The question has recently been tried in the court of 
Queen's Bench, whether a clergyman could legally 
refuse to marry persons who had not been confirmed. 
By an omission in the plea, that non-confirmation did 
not disentitle to marriage, the question was quietly 
shirked. It may, however, admit of doubt, whether 
parties declaredly members of the church of England 
are not, by ecclesiastical law, bound to be confirmed 
prior to being married. This is one among many other 
instances in which canon law and common law stand 
opposed. 

ommunion. Communion. — By the term communion, we gene- 
rally understand a commemoration of the Lord's 
death. By the church, a great deal more has been 
taught and enforced. In an early canon (a.d. 1138), 
framed at Westminster, it was styled, "The com- 
" munion of the body of Christ." By another canon, 
(a.d. 1236), the priest was to carry " the Lord's body" 
to the sick ; " and let him" (the priest) " have a silver 



CHURCH LAWS. 



147 



" or tin vessel always to carry with him to the sick — chap. iv. 

J J Sect. 6. 

* that is for giving the washings of his fingers to be Religious 

ceremonies. 

" drunk after the taking of the eucharist." The bread 
might be eaten ; but as to the cup — the washings of the 
priest's fingers were to suffice. For " the most worthy 
"sacrament of the eucharist" (a.d. 1279), "a taber- 
" nacle was to be made in every church in which the 
" Lord's body was to be laid up." " We decree, (it con- 
" tinues,) that this sacrament be carried with due 

reverence to the sick, the priest having on his 
" surplice and stole, with a light in a lanthorn before 
" him, and a bell to excite the people to due reverence, 

who are discreetly to be informed by the priest that 
" they prostrate themselves, or at least make humble 
" adoration, wheresoever the King of Glory is carried 
" under the cover of bread !" 

These religious fooleries were afterwards exceeded by 
the constitutions adopted at Lambeth, under Peckham, 
archbishop of Canterbury. "The holy council" was 
called " to correct transgressors of the canons, and to 
" obviate some innovations, or rather transgressions, 
" now exhaling from the infernal pit." Modest re- 
formers ! How did they proceed? They say, "Here 
" let us begin our correction in the sacrament of our 
" Lord's body, which is a sacrament and a sacrifice of a 
" sacrament, sanctifying those who eat it, and a sacrifice 
" which by its oblation is profitable for all in whose 
" behalf it is made, as well the living as the dead." 

Happily, though these absurdities were once law, they 
are now only records of the bygone corruption of the 

l 2 



148 



THE HISTORY OF 



chap. iv. church, and the mental prostration of the people. The 
Religious 1st Edw. VI., cap. 1, (the very first act, therefore, that 

ceremonies. 

^statute^ was passed in his reign,) declares " it most agreeable 
" to the first institution of the sacrament, and con- 
" form able to the practice of apostles and of the 
" primitive church, for 500 years after Christ's ascen- 
" sion, to administer it to all Christian people in both 
" kinds of bread and wine, and not of bread only; and 
" that the people should receive it with the priest, and 
" not by the priest alone/' It proceeds, (sec. 7,) " Nor 
" shall the minister, without lawful cause, deny the 
" same to any person that will devoutly and humbly 
" desire it." 

By the thirty-first of the articles of 1562, and now in 
force, the theological doctrine of sacramental satisfaction 
for sin is repudiated : — " Wherefore the sacrifices of 
" masses, in the which it was commonly said that the 
" priest did offer Christ for the quick and the dead, to 
" have remission of pain or guilt, were blasphemous 
" fables and dangerous deceits." And by the twenty-fifth 
article it is declared, " sacraments are tokens of Chris- 
" tian men's professions, and effectual signs of grace/' 
and " were not ordained of Christ to be gazed upon, 
" or carried about." 
Rjtes at Burials. — In a previous chapter (iii. p. 75) we have 
referred to interment as a civil privilege, we shall 
briefly advert to it now as a religious rite ; than which, 
scarcely any solemnity can be rendered more impressive 
to the living. So it was designed by the incipient 
reformation, commenced in the time of Edw. VI. The 



CHURCH LAWS. 



149 



subjoined extracts from the Book of Common Prayer, chap. iv. 
sanctioned and enforced by the first Act of Uniformity, " Religious 

ceremonies, 

will illustrate this fact. 



In the First Praver Book of Edward YL. a.d. 1549. 



In the Second Praver 
Book of Edward VI., 
a.d. 1552. 



In the present 
Praver Book. 



" The priest, casting earth on the corpse, 
shall say : — 

1. " 1 commend thy soul to God, the 
Father Almighty, and thy body to the 
ground, earth to earth ; ashes to ashes ; 
dust to dust ; in sure and certain hope of 
resurrection to eternal life, through our 
Lord Jesus Christ, who shall change our 
vile body," &c. 



2. " We commend into thy hands of 
mercy, the soul of this our brother de- 
parted, beseeching thine infinite goodness 
to give us grace to live in thy fear and 
love, and to die in thy favour ; that when 
the judgment shall come, both this our 
brother and we may be found acceptable 
in thy sight, and receive that blessing 
which thy well beloved Son shall then 
pronounce to all that love and fear thee, 
saying, — Come, ye blessed children of my 
Father, receive the kingdom," &c. 

3. " Almighty God, we give thee hearty 
thanks for this thy servant, whom thou 
hast delivered from the miseries of this 
wretched world, from the body of death 
and all temptation, and, as we trust, hast 
brought his soul, which he committed in- 
to thy holy hands, into sure consolation 



" Then, while the 
" earth shall be cast 
" upon the body by 
if some standing by, 
" the priest shall 
" say : — 

" Forasmuch as it 
" hath pleased Al- 
" mighty God of his 
" great mercy to take 
" unto himself the soul 
fi of our dear brother 
" here departed, we 
" therefore commit his 
' ' body to the ground," 
&c. (as other side.) 

Omitted. 



Omitted. 



The same. 



The word"Me" 
resurrection to 
eternal life — 
added. 



Omitted. 



Omitted. 



150 



THE HISTORY OF 



In the First Prayer Book of Edward VL, a.d. 1549. 



In the Second Prayer 
Book of Edward VL, 
a.d. 1552. 



In the present 
Prayer Book. 



" and rest ; grant, we beseech thee, that at 
" the day of judgment, his soul, and all the 
" souls of thy elect, may fully receive thy 
" promises, and be made perfit [perfect] 
" together, through the glorious resurrec- 
" tion of thy Son Jesus Christ our Lord." 

4. " O Lord, with whom do live the souls 
" of them that be dead, and in whom the 
" souls of them that be elected, after they 
" be delivered from the burden of the flesh, 
" be in joy and felicity ; grant unto this thy 
" servant that the sins which he committed 
" in this world be not imputed to him, but 
" that he, escaping the gates of hell and 
" pains of eternal darkness, may ever dwell 
" in the region of light, — and when that 
" dreadful day of the general resurrection 
" shall come, make him to rise also with 
" the just and righteous, and receive this 
" body again to glory, set him on the right 
" hand of thy Son Jesus Christ, among thy 
" holy and elect, that then he may hear with 
" them those most sweet and comfortable 
" words — ' Come to me,' " &c. 



Omitted. 



Omitted. 



Omitted. 



Omitted. 



SECTION VII. — RELIGIOUS UNIFORMITY. 

chap. iv. Senators have never attempted to coerce lawyers 

Sect. 7. 

~ into one set of opinions, or physicians into one method 
of treating diseases. Had they done so once, they 
would not have had a second opportunity to expose 
themselves to the contempt of mankind. 

Religion has, however, fared worse than law or 
medicine. In each of these sciences, evidence is the 
proof and experience the guide. But in religion, as 



CHURCH LAWS 



151 



legally prescribed, creeds suppress evidence, and coerced C ^ , 7 V - 
uniformity prevents progression. Religious 

uniformity. 

A preceding section (the 1 st) has exhibited the church 
of Rome ever busy in carrying out its favourite pre- 
tension of unity. This section will show us the Pro- 
testant church outstepping its compeer in equally 
abortive efforts to enforce uniformity. " Outstepping 
"its compeer?" What says Burn? "In the more 
" early ages of the church, every bishop had the power 
" to form a liturgy for his own diocese ; and if he kept 
" to the analogy of faith and doctrine, all circumstances 
" were left to his own discretion." # This fact receives 
confirmation from the Statute Book. The first Act of 
Uniformity was passed in the second year of Edw. VI., AD - 154S - 
cap. 1, and states : — 

" Where of long time, there hath been divers forms 
" of common prayer, commonly called the service of 
" the church, that is to say, the use of Sarum, of York, 
" of Bangor, and of Lincoln ; and, besides the same, 
" now of late, much more divers and sundry forms and 
" fashions have been used in the cathedral and parish 
" churches, as well concerning the mattins and the 
" even song, as concerning the holy communion, with 
" divers and sundry rites and ceremonies." 

It then goes on to pronounce a commendation upon 
the king, for having " borne with the frailty and weak- 
" ness of his subjects in that behalf," and for "abstaining 
" from punishment of those that have offended." And 
" to the intent that a uniform, quiet, and godly order 

* Burn's Ecclesiastical Law (Public Worship). 



152 



THE HISTORY OF 



°se A ct. 7 V ' " shoul d De nad , the king appointed Cranmer, archbi- 
Reiigious " shop of Canterbury, with other bishops and learned 

uniformity. A 

" men (having as well eye and respect to the Scripture 
" as to the usages in the primitive church), who, together, 
" should make one convenient and meet order of com- 
" mon and open prayer ; the which, at this time, by 
" the aid of the Holy Ghost, with one uniform agree - 
" ment, is of them concluded." 

This book was thenceforth to be used in all churches 
and chapels. Those who had before offended were to 
be pardoned ; except such as were then in the Tower 
and Fleet. " None other" book was to be used. 
Ministers disobeying were to be deprived of their livings, 
or imprisoned for life. 

The impotence of legislation was never, perhaps, 
more expressively shown than in this attempt. That 
very book, which was said to have been " concluded by 
" the aid of the Holy Ghost," was three years after- 
wards called in, by authority of the 5th and 6th of 
A.D at i55i Edw. VI., cap 1, "because there hath arisen, in the 
" use of the aforesaid Common Service, divers doubts, 
" rather by the curiosity of the ministers and mistakers, 
" than of any worthy cause." 

But need we be surprised that " ministers and mis- 
" takers" should have resisted the imposition of such a 
book ? There were, at that time, vast numbers of 
men who, acting upon the conviction of their judg- 
ment, adhered to the Roman Catholic form of public 
worship ; by the act they were compelled, every Lord's 
day, to utter this prayer :— " From all sedition and privy 



CHURCH LAWS. 



" conspiracy, from the tyranny of the bishop of Rome chap. iv. 
" and all his detestable enormities, from all false doctrine Religious 

uniformity. 

" and heresy — good Lord deliver us." 

Rome, however " detestable" in itself, was not likely 
to appear so to those who were obliged to pronounce 
against it an involuntary imprecation. 

This phraseology, with other parts, were omitted in 
the second Prayer Book issued in Edward's time. 

Before uniformity could be secured, it was necessary 
to enter upon the work of extirpation. Therefore the 
old Books of Common Prayer used in Henry's time, 
were (by the 3rd and 4th Edward VI., cap. 10) called 
in. All persons were to deliver them up to the civil 
authorities. Images were to be defaced and destroyed, 
except " the image or picture set or graven upon any 
"tomb of any dead person not reputed or taken for a 
" saint." At the latter end of the act, a proviso was 
inserted, by which persons might " retain the primers 
" set forth by Henry VIII., if the sentences of invoca- 
tion, or prayer to saints, be clearly put out of the 
" same." 

Whatever might have been the motives of the young- 
king and of his parliament, it is evident that these inten- 
tions were self-imposed delusions. Men did not tamely 
submit. Quarrels, conflicts, and other proofs of dislike 
of the new rites and ceremonies constantly occurred. 
Churches and churchyards were often the scenes of 
these disorders. The very same session of parliament Statute, 

J 1 A.D. 1551. 

in which the corrected Book of Common Prayer 
received the sanction of law, the legislature passed 



154 



THE HISTORY OF 



C s^ct'7 IV another act— viz., the 5th and 6th Edward VI., cap. 4, 
Religious against " fighters and fraymakers in churches and 

uniformity. 

" churchyards." Whoever was found guilty of quar- 
relling, chiding, or brawling in any church or church- 
yard, the bishop was to punish ; if the offender were a 
clerk, by suspending him from his ministrations ; or if a 
layman, by not allowing him to enter the church, and 
also by excommunicating him. If the person struck a 
blow, " or drew any weapon with the intent to strike," 
one of his ears was to be cut off ; and if the offender 
" have none ears," then " he or they shall be burned 
" and marked in the cheek with an hot iron." 

This act has been repealed, by the 9th Geo. IV., 
cap. 31, so far as relates to " striking with any weapon, 
" or drawing any weapon with an intent to strike ;" and 
by 27th Geo. III., cap. 44, suits for "striking" must 
be commenced in the ecclesiastical court within eight 
months after the offence. But so long as the statutes 
remain a national record, the fact will be in evidence 
that this first attempt made by the state to compel 
uniformity of worship, was by violence resisted at the 
very time of worship. 

We find, therefore, among eighty-six inquiries to be 
made at the Canterbury visitation, in the 2nd year of 
Edward VI., this item : — " Whether any have used 
"to commune, jangle, and talk in the time of the 
" common prayer, reading of the homily, preaching, 
" reading, or declaring of the Scriptures." # 

It became an easy task to undo all that Edward VI. 

* Strype's Memorials of Cranmer, vol. ii. p. 501. 



CHURCH LAWS. 



155 



had attempted. Immediately upon his death, the c | e A c ^ 7 IV - 
nation reverted to the old religious forms. Edward Religious 

uniformity. 

died 6th July, 1553; and by the end of the second 
session of Mary's first parliament, dissolved on the 
6th of December following, all the acts of Edward 
relating to bishops and the liturgy were swept away. 
And by the 1st Mary ( sessio secunda J, cap. 2, it was 
provided, that " all such Divine service and administra- ^^553, 
" tion of sacraments as were most commonly used in 
" England in the last year of Henry VIII., shall be 
" used through the realm after the 20th Dec, 1553." 

But vacillation was not yet perfected. Within five 
years and a half from this repeal of the professedly 
Protestant ritual, and the restoration of the Catholic 
formulary of public worship, another change took 
place. The 1st of Elizabeth, cap. 2, made void the A s £ at i558. 
repealing statute of Mary, which, it says, occasioned 
"the great decay of the due honour of God, and dis- 
" comfort to the professors of the truth of Christ's 
" religion." 

We have here a singularly impressive condemnation 
of all attempts to impose a form of worship. Within a 
period of little more than eleven years, there were four 
sovereigns on the English throne ; each one introduced 
many and highly-important changes in religious wor- 
ship. But had Henry VIII. and his three children, 
Edward, Mary, and Elizabeth, as they one after the 
other ascended the seat of authority, commanded all 
persons to wear a dress of the same colour and 
shape ; and had each sovereign chosen a contrast. 



156 



THE HISTORY OF 



C1 I4t.' 7. Y * ^* W0U W not have been a more expressive act of folly, 
Religious ~ than that which is supplied by the several statutes 

uniformity. 

which commanded uniformity in religion. They are, in 
themselves, emphatic proofs of diversity. 

One clause in this act of Elizabeth indicates the 
expectation that was formed of the result of the measure. 
The Catholic bishops had absented themselves from the 
House of Lords during the passing of the bill. They 
were, however, charged with carrying it into execution. 
But, as might be expected, it was foreseen that the 
church, as a body, would be inimical to the practical 
change. It was therefore provided, " that if there 
" shall happen any contempts or irreverence to be used 
" in the ceremonies or rites of the church, the queen, 
" by the advice of the commissioners or metropolitan, 
" may ordain and publish such further ceremonies or 
" rites as may be most for the advancement of God's 
" glory, the edifying of his church, and due reverence 
" of Christ's holy mysteries and sacraments." These 
powers, says Burn, " seem to have been lodged per- 
" sonally in the queen, as they were not extended to 
" her heirs and successors." * 

The legislatures of Edward, Mary, and Elizabeth, 
paved the way for the multiplication of penal statutes. 
They offered the motive and the justification to non- 
conformity, by vain and infatuated attempts to coerce 
the clergy into an external oneness. That they were 
ruinous efforts, subsequent events proved. During the 
one hundred years that rolled away since the last 

* Bum's Ecclesiastical Law (Public Worship), p. 243. 



CHURCH LAWS. 



157 



referred to act had been passed, both the clergy and C g^ y V * 
the laity took every opportunity of showing their Religious 

. . uniformity. 

utter aversion to a religion of " pains and penalties. 
These had, therefore, now either to be increased or 
surrendered. The church and the state chose the former. 
The civil rights of Englishmen were henceforward to 
be attacked. At first, severe laws crowded the Statute 
Book against Popish recusants. 

At length came the Corporation Act. It is the 13th ^im. 

Corporation 

and 14th of Charles II., statute 1, cap. 1, which closed Act 
every office, in borough or corporate towns, against 
all persons " who did not receive the sacrament of the 
" Lord's supper, according to the rites of the church 
'* of England." This was designed for the laity. It 
was followed by another attempt to enforce uniformity 
among the clergy. It is the 13th and 14th Charles 
II., cap. 4. This opened one of the most destructive 
fires that ever had been poured forth from the eccle- 
siastical artillery. 

The act came into force on Bartholomew's day, a.d.1662. 
August, 1662. It states, "That notwithstanding" 
Elizabeth's Act of Uniformity "a great number of 
" people do schismatically refuse to come to their parish 
" church, — and many people, to the hazard of their 
" souls, have been led into factions and schisms." It 
goes on to state that the two houses of convocation had 
reviewed the former Prayer Book, and recommended 
some alterations and additions to be made therein. 
The new and amended book is then sanctioned and 
enforced upon the observance of the clergy, who now, 



158 



THE HISTORY OF 



C s^ct"7 IV ' ^ or ^ e ^ rst ^ me ' were required to declare not only 
Religious that they would use the book, but also their unfeigned 

imiformity. 

" assent and consent to all and everything contained 
" and prescribed " therein, (sect. 3.) If they neglected 
or refused to do so some Lord's day, on or before 
the feast of Bartholomew, 1662, when they were 
" openly and solemnly before the congregation to 
" declare such assent and consent," then, so far as their 
promotion was concerned, they should be considered 
" as dead." The consequence was, , two thousand 
ministers vacated their churches. 

By the 24th section of the act, " the several good laws 
" and statutes formerly made for the uniformity of 
" prayer, shall stand in full force and strength, and 
" shall be applied for the punishing of all offences con- 
" trary to the said laws," with relation to this new 
Prayer Book. 

This was the last Act of Uniformity. It forms one of 
a code upon this subject. Lord Coke has asserted 
" Law to be the perfection of human reason ;" not of 
one age, but of succeeding times. But if we are to 
judge of the " perfection" of a law, by the successful 
attainment of its declared purpose, we shall, looking 
at results, be justified in pronouncing the laws relative 
to uniformity, the climax of infatuated imbecility. The 
light of heaven does not more clearly reveal the varieties 
of creation, than do every-day occurrences in the 
social circle proclaim contrasts of opinions, prin- 
ciples, and aims of different parties in the church. 
Its ostensible law is, that all its members and ministers 



CHURCH LAWS. 



159 



shall act alike, because they are presumed to think, chap. iv. 
and, moreover, have sworn that they believe, alike. Religious " 

m . uniformity. 

It is, however, notorious, that whatever may be the 
professions, and the oaths, and the sacraments accom- 
panying those oaths, that they believe and will use but 
one external form of worship, the clergy are among 
themselves at antipodes of religious faith. Recent 
events prove this fact. 

The consequences of constrained uniformity are too 
varied and complex to allow a fall elucidation in these 
pages. Without going into the detail of the practical 
and multiform mischiefs, we advert to one of gigantic 
magnitude. It is this. The human mind is in immi- 
nent danger of repelling religion, when thus presented. 
Would not the palate nauseate the richest food, if but 
one viand were constantly eaten ? Would not the ear 
resist the sweetest sounds, if they were the only accents 
to which it was allowed to listen ? Would not intellect 
itself turn away from the sublimest portions of Divine 
revelation, if only a certain number of words were 
always to be read 1 

The truth is, the Author of our existence has given 
us two volumes, His Word and His Works. Both are 
replete with variety, and adapted to meet the every 
phase that human aspirations after God may assume. 
" The Teacher that came from God," has instructed us 
how to use both these volumes. His example has but 
to be followed, and religion, relieved from its present 
enfeebling monotony, will spring forth with invigo- 
rating power. 



160 



THE HISTORY OP 



chap.^iv. Among no persons might this fact be evinced 
Reliffious more delightfully, than among those who use pre- 
uniformity. p are( j f orms f devotion. For it must be remem- 
bered, that a liturgical mode of worship does not neces- 
sarily include a dead monotony of enforced service. 
Ministers might be allowed a discretionary use ; or an 
arrangement of devotional exercises might be made, 
similar to that which obtains as to the public reading of 
the Scriptures. There might be variety and yet 
oneness. This principle law has itself, at length, ac- 
knowledged, by having given up all its previous 
statute, attempts to enforce uniformity. The 1st of William 

A.D. 1668. 1 J 

and Mary, cap. 18, not only took away the penalty 
which before had attached to nonconformity, but 
virtually put an end to the conflict which, during 
one thousand years, (calculating from a.d. 669, 
when, under Theodore, the British churches were, 
first brought to submit to the authority of the Pope,) 
had been kept up between ecclesiastical despotism 
and religious liberty. Ten centuries were required 
to establish it as a legal truth, that worship is an 
act of mind, and cannot be created by force ! And 
the same length of time would have been requisite 
to establish it as a legal truth, that two and three are 
equal to five, had mathematics been taught by force of 
law.* 

The fact is, theologians have been guilty of greater 
absurdities than any other one set of professional men. 

* See Appendix, as to occasional conformity. 



CHURCH LAWS, 



Religion, as given us by God, is pre-eminently a science chapmv. 
of evidence. That which it cannot prove, it does not ueiigio^r 
enforce. It has as much, perhaps more, moral evidence nmoim} ' 
than any other science. But men, professing profound 
attachment to its requirements, have lost themselves in 
the mazes of fraud or force. The history of religious 
intolerance demonstrates, that just in proportion as its 
many advocates have themselves mistaken the legiti- 
mate authority of Divine truth, viz., that of persuasion, 
in that proportion have they loaded the Statute Book 
with lamentable proofs of intellectual folly, impotent 
despotism, and religious guilt. 

Perhaps the day may come, when even Denomina- 
tional partisanship will not be chargeable, as it now, in 
very many instances, unhappily is, with imposing secta- 
rian, in the place of legal coercion. Christianity — bold, 
broad, beauteous Christianity — is still enthralled. It 
matters not, whether the eagle be confined to a throne 
of ivory by chains of gold, or linked to a dungeon by 
fetters of iron, it is alike prevented taking its native 
heavenward flight. Christians, in their individual habits 
of thought and of conduct, must learn first to emanci- 
pate their own minds from the voluntary thraldom they 
have so long and unconsciously endured, before Chris- 
tianity will be traced, in the solidity of a divinely-laid 
foundation, or admired for the beauty of its divinely- 
raised superstructure. 

i 



M 



162 



THE HISTORY OF 



SECTION VIII. RELIGIOUS EXACTIONS. 

chap. iv. Originally, every money payment to the church was 

Sect. 8. 

_ free. Neither the amount nor the obligation were 
prescribed by law. There are not, however, now, any 
original customary offerings, which may not be en- 
forced ; some in the ecclesiastical, and others in the 
common law courts. Custom has created law. Every 
statute passed upon this subject is based upon custom. 
The first statute which rendered offerings compul- 
S01 7> is tlie 13tn Edward I., cap. 1. It gives the 
" parson the right to demand oblations due and accus- 
" tomed." (Sec. 3.) By this means, offerings are now 
legally considered compositions ; and are to be sued for 

a d. 1315. in the spiritual court. The 9th of Edward II., cap. 1, 
mentions " oblations, obventions, mortuaries, and re- 

a.d. 1549. « demption of penance." The 2nd and 3rd of Edward 
VI., cap. 13, sec. 10, required such " offerings to be 
" paid at the four offering days, as had, within the space 
" of four years last past, been used and accustomed for 
" the payment of the same." 

We shall find, however, a singular anomaly in this 
matter. The ecclesiastical law forbids a stipulated price 

A?D n ii26. being demanded for spiritual offices. "We charge 
" that no price be demanded for chrism, oil, baptism, 
" visiting or anointing the sick, for the communion of 
" the body of Christ, or for burial." 

a.d.1138. The canon of this year repeated the former injunc- 



CHURCH LAWS. 



163 



tion ; and also added "the espousals of women," among' C |^' 8 IV - 
the acts for which a price was not to be demanded. The Religious 

. exactions. 

prohibition was afterwards again enlarged: — "The A.D.1175. 

" holy synod detests simonaical heresy ; and ordains 

" that nothing be demanded for orders, chrism, bap- 

" tism, extreme unction, burial, communion, nor the 

" dedication of a church, but that what is freely received 

" be freely given. Let the offender be anathema." 

But though a price might not be charged, it was 
assumed that an offering would be made. The amount 
of these free gifts appears from another canon, which 
complained that " some sons of malediction endeavour a.d. 1328. 
" to restrain the devotions of the people at solemnization 
" of marriage, purification of women, offices for the 
" dead, and upon other occasions (where God in the 
" persons of his ministers uses to be honoured with the 
" oblations of his people) to a penny, or a small pittance 
" of an offering" " Every such instigator and hinder er, 
" by whose wicked contrivances any accustomed honour 
" or profit is withdrawn from rectors or vicars," were 
" involved in the sentence of the greater excommunica- 
" tion, and we reserve the absolution of them, till by 
" their counter-endeavours the devotion of the people 
" be effectually restored." 

It is evident, from the foregoing denunciation, that 
though the church refused to sell her spiritual offices, 
she yet deigned to exact a pecuniary acknowledgment 
for the administration. 

Thirteen years from the date of the last mentioned A jxi34i. 
canou, the church called in the power of the state. * 

m 2 



164 



THE HISTORY OF 



CH stc P t.8 V ' B ? the 15th Edward m > ca P- 6, (styled " An Act 

Religious touching money to be taken by priests") they were 

Exactions. 

empowered to demand money, for " redemption of 
" corporal penance, probates, the solemnity of marriage, 
" and for other things touching the jurisdiction of holy 
" church." 

In that age, every act of the priesthood touching 
religious offices was understood to be included in the 
phrase "jurisdiction of holy church." It is true, a part 
of that jurisdiction relates to the " punishment of sin," 
(see page 172,) " for which money is not demanded." 
But though the spiritual courts could not impose a fine, 
that being a civil penalty, they might and did inflict 
a more grievous evil, in the form of costs. Then as 
now, these prove the cause of certain ruin in many 
cases. 

The denunciation by the canon of 1328, shows in 
what way the people then sought to cheat the priest. 
In modern days, some priests seek to evade the people. 
The facts are as follow. 

When G. A. Vernon, Esq., the commissary and 
vicar-general of the archbishop of York, was examined 
before the ecclesiastical commission in 1830, he was 
asked, " Do you consider that you have any jurisdiction 
" to enforce the payment of fees for burials, christenings, 
" marriages, or any other service of that description ? " 
And his reply was, — " I should think not." 

Another witness supplies the information as to the 
method by which these payments are obtained. Dr. 
Goddard, the archdeacon of Lincoln, told the com- 



CHURCH LAWS. 165 

inissioners that " fees for baptisms were asked upon chap, iv 

Sect. 8. 



Religious 
exactions. 



" the pretence of opening the church!'* 

Burial Fees. — Although the canons prohibited B Ur iaif ees , 
a price being demanded, they established a certain 
kind of proprietary interest of every parish priest in 
his parishioners, living or dead. Thus the ecclesias- 
tical law says, " Corpses shall not be carried out of their jJ^dS 
" parishes to be buried, so that the priest of the parish 
" lose his just dues." 

Mortuaries partake of this character of proprietary Mortuaries, 
interest. They are a species of ecclesiastical feudal 
tenure. In this light, the church itself speaks of them. 
They were called the " principal legacy," " which first 
" was voluntary and bequeathed by will, and then gra- 
" dually grew into a custom. "f Respecting it, the 
canon says, " Let the custom of the province, with 
" the possession of the church, (i.e., the then method 
" of paying it,) be observed." But as disputes often 
arose, they were sought to be allayed both by statute 
and canon law. The statute is the 13th Edward I., statute, 

A.D. 1285. 

cap. 1, and gave to prelates power to punish offenders 

against " the parson who demanded mortuaries in places 

" where they have been accustomed to be given." The 

canon also says, " If the deceased had three animals ad. 1367. 

" or more, of any sort, the best being reserved to the 

" Lord, to whom it is due, (known by the name of 

" heriot,) the next best shall be reserved for the church, 



* Report of Ecclesiastical Commission (1830), pp. 130 and 141 of the 
Appendix. 

f Johnson's Ecclesiastical Laws (1250). 



166 



THE HISTORY OF 



chap. iv. " (from which he received the sacraments while he was 

Sect. 8. N 

ueiigious " alive). If there were but two animals among the 

exactions. 

" chattels of the deceased, the church in mercy remits 
" all actions on account of a mortuary. If the wife 
" survives her husband one year, and, as his widow, 
" continues to govern the family, let her be obliged to a 
" mortuary according to the form above written." 

The evil remained unabated ; complaints appear to 
have been repeated and loud. The laws made upon 
statute, the subject exhibit painful facts. The 21st Henrv 

A.D. 1530. J l J 

VIII., cap. 6, says, " Mortuaries, otherwise called corse 
" presents, for the value of them, is thought over exces- 
" sive to the poor people and other persons ; as also 
" that they have been levied for such as at the time of 
" their death have had no property in any goods or 
" chattels, and many times for travelling and wayfaring 
" men in the places where they have fortuned to die." 

It then forbids mortuaries to be taken, if the person 
died possessed of goods under the value of ten marks, 
(£6. 13s. 4d.) They are due "only in such places 
" where they had been accustomed ; and but one mor- 
" tuary for one place. Over ten marks, clearly above the 
" debts paid, and under thirty pounds, a mortuary of three 
" shillings and fourpence, and no more. Over thirty 
" pounds and under forty pounds, after debts being paid, 
" six shillings and eightpenee, and no more. Above forty 
" pounds, to any sum, whatsoever it be, clearly above 
" his debts paid, no more than ten shillings shall be 
" paid or demanded." By this statute, mortuaries are 
not demandable for any child, or person not keeping a 



CHURCH LAWS. 



167 



house, or for a wayfaring man, or a woman "covert chap. iv. 

J ° Sect. 8. 

" baron." Wales is exempt, unless the custom had Religious 

• • n exactions. 

obtained in any place m that part of the realm. 

But notwithstanding this act, the archdeaconry of 
Richmond, in Yorkshire, within the diocesan court of 
Chester, and province of York, continued to exact 
higher mortuaries, by virtue of a prescriptive right, 
which the former statute did not destroy. The 26th of 
Henry VIII., cap. 15, says, " Divers and many " in 
this archdeaconry, " had for a long time been sore and 
" grievously exacted and impoverished by the parsons, 
" vicars, and others, taking of every person when he 
" dieth, in the name of a pension, sometimes the ninth 
" part of all his goods, and sometimes the third part." 
It then regulates the payments, according to the scale 
in the first mentioned act. 

In addition to mortuaries, fees are now recoverable 
at common law, by rectors or vicars, for every interment. 
By a fiction of law, the freehold of the churchyard lies 
in the parson. For breaking ground in that freehold 
he is entitled to his fee. The amount is fixed by the 
custom of each parish. 

Now that difficulties so frequently occur as to 
interring the unbaptised, (and if the clergy were strict 
m tbeir compliance with the rubric, they would also 
refuse the offices of the church, at the funeral of those 
who had not partaken of the sacrament at Easter and 
Christmas, according to the rites of the church of 
England,) it seems but equitable, that the friends of 
parties so refused interment in churchyards, should 



168 



THE HISTORY OF 



chap. iv. either be excused all mortuaries and other payments ; 
Religious or that the legislature should enforce the constitutional 

exactions. 

right of burial for all persons, and under all circum- 
stances ; or allow accredited ministers of every section 
of the Christian church to inter, in the churchyard, their 
own members or friends, 
sacramental The assumption by the church, as also by the common 

fees, or Eustci* 

offerings. ] aw f ^he j anc ] 5 j Sj that all persons above the age of 
sixteen years are communicants. As such, they are 
liable to be proceeded against, if they pay not their 
quota of the cost of bread and wine. These go under 
the designation of Easter offerings. The only persons 
exempt, are the citizens of London, unless " the wife, 
" children, servant, or others of the family of any 
" householder take their rites of the church at Easter, 
" when the householder shall pay twopence for the four 
<; offering days yearly." — 37th Henry VIII., cap. 12, 
sec. 12. 

In all these cases, the ecclesiastical courts proceed by 
their own laws. The statute of Edward I., (a.d. 1285,) 
withdrew from the temporal courts the power of pro- 
hibition, in every instance of non-payment. The cause 
would proceed pro salutce animce, and ostensibly seek 
" the correction of manners." 
church rates. From a very early period, churches were deemed 
public edifices. They served the double purpose of 
religious worship and civil protection. As such, they 
were to be sustained by the parishioners. The first 
A^Tiois canon passed on this subject says, " All people ought, 
" of right, to assist in repairing the church." Ques- 



CHURCH LAWS. 



169 



tions, however, arose, as to what ornaments, as well as chap. iv. 

Sect. 8. 

what repairs, were to be provided by the parish. Uelig i us 
Another canon, therefore, prescribed that the following* 
things the people should supply: — "The principal a.t>. 1250. 
" mass vestment of the church — the alb — the amyt — 
" the stole — the maniple — the girdle, with three towels 
" and corporals, with other decent vestments for the 
u deacon, with a silk cope for the principal festivals — a 
" cross for processions, and another lesser cross for the 
" dead— a bier for the dead — a vessel for holy water," 
and other Romish ceremonies — " three surplices, great 
" bells with their ropes" together with " images" of 
different kinds. 

By the same canon, " the chancel, with the repara- 
" tion thereof, as the walls and roofs, and glass 
" windows, with desks and benches," are said to 
" belong to the rectors or vicars ;" " and let them 
" know that they may be compelled to these and other 
" things, not written in this book, by the ordinaries 
" (bishops) of the places, according to this consti- 
" tution." 

Many of the above articles may now be refused, as 
they might be said to be devoted to those " superstitious 
" uses," which by law are prohibited. The principle 
of the law, however, remains untouched, and unre- 
pealed. Had it been that canon law only enforced their 
being furnished, it would have been obligatory upon 
parishioners to furnish the supply, seeing that these 
and other canons fall under the description given of 
them in the preamble of the 21st Henry VIII., cap. 



170 



THE HISTORY OF 



chap. iv. 21, viz., that by "the sufferance of the monarchs, the 

Sect. 8. ' ' J ' 

" "Religious " people have taken, at their free liberty, and have 

exactions. 

" bound themselves by long use and custom to the 
" observance of the same/' 

But the case is still more strongly made out by the 
statute, unrepealed statute of the 13th of Edward I., by which 

A.D.1285. r _ . 

a prohibition from the king's courts will not lie against 
the ecclesiastical courts, if they proceed " to punish for 
" leaving the churchyard unclosed, or the church un- 
" covered, or not conveniently decked." In this act, 
the original terms employed are very comprehensive. 
They are "pro ecclesia non facta ; cameterio non clauso ; 
ecclesia discoopta, vel non decenter ornata." 

With these laws in force, it is in vain parishioners 
seek to get rid of church rates by a mere vote at a 
parish vestry. All they can do, is to prevent retro- 
spective rates; or the secret insertion of charges . not 
legitimately within the intention of the law. Until it is 
repealed, the " courts christian" may bring up the 
power of the common law courts, to enforce both the 
making and the payment of the impost.*' It remains 
to be seen, whether a minority of parishioners, aided 
by the churchwardens, may not impose a rate upon 
and against the consent of the majority. This question 
is now subjudice in the House of Lords. 
Oblations and Anions: other sources of revenue, which the officers 

obventions. 

* In 1843, a bill was brought into parliament by the then government 
respecting ecclesiastical courts, in which it was proposed to repeal so 
much of the above statute of Edward I., as " related to spiritual persons 
" suing for tithes, mortuaries, and pensions in the spiritual courts." But 
it left the question of church rates untouched. 



CHURCH LAWS. 



171 



of the church may demand and recover by law, are chap. iv. 
oblations and obventions. This latter word includes Religious 

exactions. 

the former ; under the two phrases are comprehended 
the small customary sums paid by every person when 
he receives the Lord's supper at Easter ; and the cus- 
tomary payment for marriages, christenings, church- 
ings, and burials. By the 2nd and 3rd Edw. VI., cap. 
13, sec. 10, " every person shall pay the parson, vicar, 
" proprietor, or their deputies," if for four years before 
the time of passing the act they had been accustomed 
to pay these various offerings. This act, by referring 
to " the custom" of the parish, somewhat abridged the 
law, as it had stood from the time of the 13th Edw. I., 
which rendered it imperative upon all persons to pay 
the " accustomed" demand, without restricting it to 
four years' previous custom. 

These compulsory "offerings" are, in many instances, 
a fruitful source of personal and parochial strife. In 
1822, a demand of ten pence was made upon Wat- 
son, for an Easter offering. He having refused 
payment, was cited into the bishop's court of Durham ; 
and though the plaintiff eventually lost his cause, the 
defendant had to pay (it is said) £1,178 12s. Id. costs 
and other expenses. 

SECTION IX. RELIGIOUS DISCIPLINE. 

The first legal form, relating to discipline over the AsHo the 
laity, was established and confirmed by the constitu- 
tion of ecclesiastical courts, in the time of William the 
Conqueror. The terms employed in the charter which 



172 



THE HISTORY OF 



CI Sert9 1V ' £ ave t0 tnose courts a separate and independent order 
Religious of proceeding, are emphatic and comprehensive 

discipline. 

" Causam quae ad regimen animarum pertinet" This 
" government of souls," was construed to mean every 
action, and to include every person in the state. " Every 
" one has a soul," exclaimed the priesthood ; whatever 
he or she performs, indicates the moral condition of the 
soul ; we therefore, pro salutes animce, claim the power 
" of correction of manners." 

" The punishment of sin' pertains to ecclesiastical 
law. The state has assigned to the church this power. 
A S D at i285 ^ tn ^dw. 1. gives the bishops authority "to hold 
" plea in court christian of such things as be mere 
" spiritual, that is, to wit, of penance enjoined for 
" deadly sin, as fornication, adultery, and such like," 
and likewise " for breaking an oath." 

By virtue of these powers, the court of the arch- 
bishop of York, in February, 1827, imprisoned a 
parish clerk four months in York Castle, for " immoral 
" and profligate life." Another court (Lincoln), in 
1828, imprisoned a man and a woman, guilty of " for- 
" nication," one year and eight months. 

The officers charged with this correction of manners, 
are the chancellors, archdeacons, or commissaries. The 
patent granted by the bishop of Norwich to the Rev. 
C. N. Wodehouse, describes him " corrector-general." 
That given to the chancellor, the Rev. William Yonge, 
clerk, gives him authority "to punish as well the 
" clergy as laity, of both sexes, whatever dignity or 
" honour they may enjoy ; and to correct, punish, and 



CHURCH LAWS. 



173 



" reprove, as often as it shall seem expedient, according chap. iv. 
" to the canons of the church, and the laws and statutes 



" of this realm, whatever shall be found out and de- 
" tected ; and to assign, inflict and impose upon the 
" delinquents, canonical and salutary penances, in pro- 
" portion to the quality and degree of their crimes, 
" excesses, faults and demerits, according to the sound 
" learning and discretion given him by the Lord." 
[This instrument bears date 21st November, 1814, and 
was ordered by the House of Commons to be printed, 
26th March, 1830.] These powers are sufficient to 
alarm. They apply, however, only to members of the 
church of England. The Toleration Act did not, it is 
true, expressly relieve dissenters from ecclesiastical 
discipline. It only freed them from certain penalties 
to which otherwise they would have been liable, for 
nonconformity to public worship. That law was sub- 
sequently enlarged, by the 52nd Geo. III., cap. 155, and 
by the 13th section, " the jurisdiction " (i.e., judicial 
process) " of the archbishops or bishops, or other 
" person exercising lawful authority in the church of 
" the United Kingdom," is declared to extend " over 
" the said church, according to the rules and disci- 
" pline of the same, and the laws and statutes of the 
" realm," and no further. 

Still the question may be asked, Can judicial powers 
put down or punish " deadly sins ?" The reply may be 
given in the words of the apostle John, 1st Epistle, 
v. 16, " There is a sin unto death," or a deadly sin, " I 
" do not say he shall pray for it." The force of this 



Religious 
discipline. 



Statute 
A.D. 1812. 



174 



THE HISTORY OF 



CI s^ct"9 V " P assa & e nas ^ een impaired, and the true meaning kept 
Religious back, by retaining the same word " pray," in the 

discipline. 

latter as well as in the former clause of the verse. 
In the former clause, an offending brother is to be 
" prayed for" airtu, to beg, beseech. In the latter 
clause, the word is also translated pray : but another 
word is employed in the original. It is e/pw, to bind, 
order, command. The Vulgate reads it " ut roget 
" quis," rogo, to bring in a bill, to propose a law in 
the senate. This very word is so used in the parlia- 
mentary roll of a.d. 1235, in 20th Henry III. 

The apostle, therefore, seems clearly to distinguish 
between spiritual correction, by prayer, which he says 
shall restore the offender, and judicial processes, which 
he interdicts. The word used in the latter clause of 
this passage is the same as that used by the evan- 
gelist John, i. 19, when he says " the Jews sent from 
" Jerusalem priests andLevites," i.e., the officers of the 
Jewish consistory court, to "interrogate," cpwrijowtv, 
" demand, judicially to inquire" of John, " Who art 
" thou ?" 

To return to the legal question. There are two 
modes by which the clergy might seem to have 
power to enforce discipline over the laity. One is 
provided in the Book of Common Prayer, and 
respects the administration of the Lord's supper. 
Thus, "an open and notorious evil liver" the minister 
may prohibit from coming to the table. But then, the 
person so prohibited must, by a previous process of law, 
be pronounced guilty of some spiritual offence. With- 



CHURCH LAWS. 



175 



out such legal process, the minister may himself be chap. iv. 
punished, both by the ecclesiastical and civil courts, for Re]i(rious 
refusing to admit to the table. discipline. 

The other mode of proceeding against offenders is 
to refuse Christian burial. A variety of causes justify 
this refusal. (See section xiv., chap, iii., p. 75.) But 
here, again, a course of law must be resorted to, either 
to compel the minister to bury, or to punish him for 
refusing. The reason for all this is obvious. The 
authority of law supersedes all other influence. But in 
the case of voluntary membership of other churches, 
each individual becomes bound by the rules of the asso- 
ciated body, and so long as these are adhered to, the 
common law holds the administrator harmless. 

As to priests. It must not be overlooked, that As to Priests, 
the bishops had once awful power in their hands, which 
at pleasure they could use against their clergy. For 
adultery and other sins, " archbishops, bishops, and ^statute, 
" other ordinaries, having episcopal jurisdiction, could 
" punish and chastise priests, clerks, and religious men, 
" as were convicted afore them by the law of the church, 
" by committing them to prison for such time as they 
" thought convenient." — 1st Henry VII., cap. 4. And 
the bishops were by the act " discharged of all actions 
" for false imprisonment." The 3rd and 4th Vict., cap. statute, 
86, (a.d, 1840,) repealed this statute, and placed the 
power in more than one person's hands. By this act 
the bishop in whose diocese " any clerk in holy 
" orders is charged with any offence against the laws 
" ecclesiastical, or concerning whom there may exist 



A.D. 1840. 



176 



THE HISTORY OF 



chap.iv. « any scandal or evil report," may appoint a com- 
Reiigious mission of five persons, " to inquire as to the grounds 
discipline. u ^ g ^ ; charge or report," and whether there be 
sufficient prima facie reason to institute further pro- 
ceedings. If they determine there is, the bishop may, 
with the consent of both parties, " pronounce such 
" sentence as he shall think fit, not exceeding the 
" sentence which might be pronounced in due course 
" of law ; " or he may proceed to trial, according to the 
ecclesiastical law, if assisted by three assessors ; of 
whom one shall be his vicar-general ; or one arch- 
deacon, or rural dean. Or the bishop may at once 
carry the cause into the ecclesiastical court ; from which 
an appeal lies to the privy council. The arcJibishop 
may also cite into his court, pursuant to the 23rd 
Henry VIII., cap. 9, sec. 4, any person or persons in 
" any bishop's diocese for causes of heresy, if the bishop 
" consent, or doe not his duty in punishment of the 
" same." 

Another provision of the act of Victoria is remarkable. 
The 25th section states " that nothing therein contained 
" shall be construed to affect any authority over the 
" clergy of their respective provinces or dioceses, which 
" the archbishops or bishops of England and Wales, 
" (Ireland is excluded,) may now, according to law, exer- 
" cise personally, and without process in courts As to this 
last power, the 54th canon (a.d. 1603) says, archbishops or 
bishops may " admonish any man licensed to preach, if 
" he refuse to conform himself to the laws, ordinances, 
" and rites ecclesiastical, to submit himself to the use 



CHURCH LAWS. 



177 



"and due exercise of the same. And if after such chap. iv. 

Sect. 4. 

■* admonition he do not conform himself within the Religious 

• p discipline. 

" space of one month, we determine that the licence of 
* every such preacher shall be utterly void." And by 
the 9th Edward IL, (1315,) cap. 13, the " bishop is the 
** sole judge of the ability of a parson presented unto a 
" benefice of the church." So that after a minister shall 
have subscribed the Thirty-nine Articles, taken the 
oaths, preached in one church, it may be, for many 
years, if presented to another benefice, he may be again 
subject " to episcopal examination." In Mr. Oor ham's 
case, this actually took place, and occasioned all the 
legal and theological agitation incident to the refusal of 
Dr. Philpotts, the diocesan, to induct him to -the 
crown living. Withdrawal of licence to preach, and 
refusal to institute to a living, are the two powers a 
bishop may constantly employ. 

Defamation of character is punishable in the spiritual 
court. It is assigned them, by the 9th Edward II., 
and has proved a fruitful source of vexation ; and, in 
many instances, of the ruin of parties. (See Report of 
Ecclesiastical Commission, p. 569, App.) 

Excommunication was, originally, one of the most 
awful disciplinary powers exercised by the church, or 
sanctioned by the state. The lesser excommunication 
denied the excommunicated person ingress into the 
church ; the greater, involved imprisonment and out- 
lawry. By the 53rd George III., cap. 127, " no civil 
" penalty or incapacity whatever is incurred, save 
" imprisonment for six months." 

N 



178 



THE HISTORY OF 



CHAPTER V. 

CHURCH LAWS RELATING TO THINGS MIXED; OR 
PARTLY SECULAR AND PARTLY SPIRITUAL. 

1. Relative position of church and state. 
§ 2. Legal status of the clergy. 

Bishops as barons — Exceptions. 

Clergy, as a distinct and principal estate. 
§ 3. Supremacy. 

Powers (spiritual and temporal) conferred upon the sovereign as 
head of the church. 
§ 4. Appointment of bishops. 

By the clergy and people. 

By the crown. 
§ 5. Episcopal sees — 

Creation of, by the crown. 
§ 6. Church property — 

Derived from gifts. 

Mis-appropriation by the church. 

Re-appropriation by the state as trust property, subject to existing 
laws. 
§ 7. Convocation. 
§ 8. Benefices — Simony. 

§ 9. Ecclesiastical jurisdiction, derived from the crown. 

Church officers; e.g., judges, advocates, archdeacons, &c. 



chap, v. It has been shown (ch. iv. sec. 2, page 85) that the 
ecclesiastical body was the first to make & formal decla- 
ration of its incorporation with monarchical power. This 
amalgamation had existed antecedently, but at the time 



CHURCH LAWS. 



179 



specified it took what may be called a legal form. As chap. v. 
a consequence of this union, we are obliged to regard 
the church sometimes as a spiritual, at other times as a 
temporal organisation ; and it not infrequently happens 
that it is seen in a mixed character, i.e., neither wholly 
religious nor entirely secular, but as sustaining a combi- 
nation of both elements. The only question with which 
we have to do, is to state the law upon the several 
matters in which the incorporation exists. The great 
principle upon which the whole subject turns, will be 
seen in the following sections. 

SECTION I. — THE RELATIVE POSITION OF CHURCH 
AND STATE. 

Ever since the two powers were incorporated, there 
have been conflicts between them ; the one to accroach 
to itself supreme authority — the other, to retain its 
legitimate control. The history of these conflicts need 
not here be repeated, except so far, indeed, as to refer to 
the fact, that in no instance have these contentions been 
more clearly proved than in the unceasing opposition 
existing between ecclesiastical and civil jurisprudence. 

The spiritual courts (the centre of church power) 
have always been the objects of dislike to king's 
courts. But, independent of this consideration, the 
state has, for more than eight centuries, strove to 
drive and to restrain the spiritualty (as Henry 
VIII. called the church) within the limits of spiri- 
tual authority. Civil matters have, one after the 

n 2 



180 



THE HISTORY OF 



C Sdf'i V ' ot ^ er ' keen withdrawn from its grasp (see ch. iii. sec. 
Relative posi- 1 to 12) ; and although it is true the mightiest of these 

tiou of church 

and state, usurpations remain, to mingle with other wrecks of the 
papal domination (see "Wills," "Marriages," sec. 7 and 8), 
still even these remnants of the moral despoiler of Chris- 
tianity must, eventually, melt away before the rising 
influence of an enlarged acquaintedness with the whole 
subject. 

In order to form a correct opinion upon this matter, 
it is not necessary to refer to ancient proceedings or 
laws. Modern legislation will sufficiently explain the 
relation the church bears in or to the state. The two 
parties have each authoritatively spoken upon this 
point. For instance — 

The state has embodied its decisions in various 
statutes. One is the 24th Henry VIII., cap. 12, and de- 
clares " the English church sufficient and meet of itself, 
"without the intermeddling of any exterior person or 
" persons, to determine all doubts and to administer all 
" such offices and duties as to their rooms spiritual doth 
" appertain." This self-government may, in strict legal 
construction of the act, be restricted to mean indepen- 
dence of papal domination. But, if competent to 
govern itself against this greatest tyranny, a fortiori, 
the church is equally competent to govern itself, without 
the " intermeddling of any exterior person or persons 
" whatever." 

The church has, with equal explicitness, defined the 
position it yields to the state. Thus, the 37th article (1562 
and 1571), under the head of" civil magistrates," says : — t 



CHURCH LAWS. 



181 



" The queen's majesty hath the chief power in this ^§jj*£?* 
" realm of England, and other her dominions, unto Relative P osi- 

tion of church 

" whom the chief government of all estates of this and state. 
" realm, whether they be ecclesiastical or civil, in all 
" causes doth appertain ; and is not, nor ought to be, 
" subject to any foreign jurisdiction." Then follows an 
expletive. 

" When we attribute to the queen's majesty the chief 
" government, by which titles we understand the minds 
" of some slanderous folks to be offended, we give not 
" to our princes the ministering either of God's Word 
" or of the sacraments ; the which thing the injunctions 
" also lately set forth by Elizabeth, our queen, do most 
" plainly testify ; but that only prerogative, which we 
" see to have been given always to all godly princes, in 
" Holy Scriptures, by God himself ; that is, that they 
" should rule all estates and degrees committed to 
" their charge by God, whether they be ecclesiastical or 
" temporal, and restrain, with the civil sword, the 
" stubborn and evil doers." 

The canons of 1603, speaking of the king's supre- 
macy, after renouncing that of all foreign powers, says, 
" The king's power is the highest power under God, 
" to whom all men do by God's laws owe most loyalty 
" and obedience," — (1st.) Another (the 3rd) says, 
" The church of England is a true and apostolical 
" church, by law established under the king's majesty ;" 
i.e., its origin is apostolic ; its position, legal. 



182 



THE HISTORY OF 



SECTION II. LEGAL STATUS OF THE CLERGY. 

As an integral part of the state, the church has had 
assigned to it a distinct and correlative position in the 
state. The 8th of Elizabeth, cap. 1, (a.d. 1558,) 
declares " the clergy one of the greatest states of this 
" realm." Laws of an earlier date, still more defini- 
tively defined the position of certain ecclesiastics. In 
1285, the 13th of Edw. I., cap. 42, declared "bishops," 
holders of " a barony." In 1350, the 25th Edw. III., 
cap. 6, calls them "peers of the realm." As such, 
English bishops have always claimed, ex officio, a right 
to sit and vote in the House of Lords. This claim does 
not, therefore, extend to Irish, Scotch, or colonial 
bishops. And, even in respect of the English epis- 
copate, a most remarkable change took place in 1847. 

The 10th and 11th Vict., cap. 108, founded the new 
see of Manchester ; bat it enacted, " that the number 
" of lords spiritual shall not be increased" by such 
creation of the bishopric ; and "whenever there shall be 
" a vacancy among the lords spiritual by the avoidance 
" of any one of the sees of Canterbury, York, London, 
" Durham, or Winchester, or of any other see which 
" shall be filled by the translation thereto, from any 
" other see, of a bishop at that time actually sitting as 
" a lord of parliament, such vacancy shall be supplied 
" by the bishop who shall be elected to the same see ; 
" but if such vacancy shall be caused by avoidance of 
" any other see in England or Wales, it shall be sup- 



CHURCH LAWS. 



183 



" plied by that bishop who shall not have previously C |^- 3 V - 
" become entitled to the writ of summons ; and no Legal status 

of the clergy. 

" bishop elected to any see, (except the above five,) 
" shall be entitled to such writ of summons, unless in 
" the order and conditions above prescribed." 

Thus a prescriptive right, that had stretched over a 
period of more than five hundred and fifty years, was 
set aside, and a new principle established, viz., that 
there is no necessary connection between a bishopric 
and a barony. 

The relative position of church and state may be 
further ascertained by a slight reference to some of the 
ancient and unrepealed laws upon the matter. Thus, 
the 25th Edw. III., statute 6, calls it, " the holy church 
" of the realm." The object for which it was founded 
is also defined, viz., " to inform the people of the law 
" of God ; to make hospitalities, alms, and other works 
" of charity, in the places where the churches were 
" founded, for the souls of the founders, their heirs, and 
H all Christians." 

The 26th Henry VIII., cap. 1, designates the church 
" Anglicana Ecclesia," the authority of which shall be 
exercised by the king, his heirs and successors, " most 
" to the pleasure of Almighty God, the increase of 
" virtue in Christ's religion, and the conservation of the 
" peace, unity, and tranquillity of the realm." 

The 27th tlenry VIII., cap. 20, styles it, " his (the 
" king's) church of England and by the 31st of the 
same reign, cap. 14, it is called, "the king's English 
" church." 



184 



THE HISTORY OF 



° feet 2' ^ tn * s c ^ lurc ^5 tne chief spiritual authority is the 
Legal status archbishop of Canterbury ; who, by the 1st of Eliza- 

of the clergy, 

beth, cap. 2, sec. 25, is " metropolitan of this realm" 
In other words, wheFever throughout the British 
empire the authority of the crown is exercised, there, 
" pari passu" the ecclesiastical jurisdiction of the arch- 
bishop is also to be acknowledged. 



SECTION III, THE SUPREMACY. 

The monarchs of this country have always stood at 
the head of the ecclesiastical body. This they claim 
and exercise by prescriptive right. It has been shown 
that, in the Anglo-Saxon times, the king met the 
prelates in those assemblies, which were called to adopt 
laws for the regulation of the whole community. (See 
chap, iv., sec. 2.) 

The regal prerogative of supremacy has never been 
surrendered — not even when England was under the 
spiritual domination of a foreign pontiff ; and, therefore, 
the 25th of Edward III., in a.d. 1350, charged "the 
" bishop of Rome with accroaching to him the seig- 
" niorities of the possessions and benefices of the church 
" of England, as if he had been patron or advowee." 
In opposition to whom, it declared (sec. 4) " the king 
" advowee paramount immediate." The* rights inci- 
dent to which it is asserted " the king and his proge- 
" nitors had, before that free election was granted," and 
therefore, that " all prelates, and other people of holy 



CHURCH LAWS. 



185 



church," hold their benefices as " king's gifts." (Sec. c g£P-v. 
2 and 3.) i~ ~ 

The independence of the crown was further declared supremacy ' 
by the 24th Henry VIII., cap 12, which says, " Divers 
" authentic histories and chronicles express that Eng- 
" land is an empire, having one supreme head and 
" king, unto whom a body politic, divided by the names 
" of spiritualty and temporalty, compact of all sorts and 
" degrees of people, have been bounden to bear, next to 
" God, a natural and humble obedience," " he {i.e., the 
" king) being furnished with plenary, whole and entire 
f power, prerogative, and jurisdiction, without restraint 
" or provocation to any foreign princes or potentates of 
" the world." 

It goes on to declare that " Edward L, Edward III., 
" Richard II., Henry IV., and other kings, made 
" sundry laws for the entire and sure conservation of 

the prerogatives of the imperial crown, and of the 
"jurisdiction spiritual and temporal of the same, to 
" keep it from the annoyance, as well of the see 
" of Rome, as from the authority of other foreign 
" potentates." 

The succeeding year brought out another act, (25th 
Henry VIII., cap. 21,) in which " the bishop of Rome" 
is charged with "pretending that he hath power to 
" dispense with all human laws of all realms, in all 
" causes which he called spiritual ; which matter hath 
" been usurped by him and his predecessors, in great 
31 derogation of the imperial crown, contrary to right 
" and conscience." 



186 



THE HISTORY OF 



chap.^v. These several acts, the reader will bear in mind, 
The" were passed before Henry VIII. was by statute styled 

supremacy. 

" supreme head of the church." 

The monarch is recognised by common law, as "per- 
" sona mixta," or "persona mixta cum sacerdotibus statutis 
" ecclesice." " In which case, the king* might maintain 
" his jurisdiction by prescription, by which it appeareth 
" that prescription doth prevail against express canon."* 
The act, as to the supreme head of the church, was 
declarative of ancient law. It did not create any new 
right, it only gave a new designation. To a certain 
extent, this and subsequent acts have enlarged 
monarchial powers over those of an ecclesiastical 
character. But even these enlargements have all been 
based upon, and sanctioned by, original prerogative 
rights. 

To prescriptive right have been added statute laws. 
AD at i535 ^ e most ex P r< 3ssive is that of the 26th Henry VIII., 
vnL^ap r i. cap. 1, and is as follows, — "Albeit the king's majesty 
"justly and rightfully is and ought to be supreme 
" head of the church of England ; and so is recognised 
" by the clergy of this realm in their convocations; 
'* yet nevertheless, for corroboration and confirmation 
" thereof, and for increase of virtue in Christ's religion 
" within this realm of England ; and to repress and 
" extirp all errors, heresies, and other enormities and 
" abuses heretofore used in the same ; be it enacted 
" by the authority of this present parliament, that the 
king our sovereign lord, his heirs and successors, 

* Coke's Reports in the Common Pleas, 13th part, page 14. 



CHURCH LAWS. 



187 



" kings of this realm, shall be taken, accepted, and c ^ P g V - 
" reputed, the only supreme head on earth of the church The 

supremacy 

" of England, called Anglicana Ecclesia ; and shall have 
" and enjoy, annexed to the imperial crown of this realm, 
" as well the title and style thereof, as all honours, digni- 
" ties, pre-eminences, jurisdictions, privileges, autho- 
" rities, immunities, profits, and commodities to the 
" said dignity of supreme head of the same church 
" belonging and appertaining ; and that our said sove- 
" reign lord, his heirs and successors, kings of this 
" realm, shall have full power and authority, from time 
" to time, to visit, repress, redress, reform, order, correct, 
" restrain, and amend all such errors, heresies, abuses, 
" offences, contempts, and enormities, whatsoever they 
" be, which, by any manner of spiritual authority or 
" jurisdiction, ought, or may lawfully be reformed, 
" repressed, ordered, redressed, corrected, restrained, 
" or amended, most to the pleasure of Almighty God, 
u the increase of virtue in Christ's religion, and for the 
u conservation of the peace, unity and tranquillity of this 
" realm, any usage, custom, foreign laws, foreign autho- 
" rity, prescription, or any thing or things to the con- 
" trary hereof, notwithstanding." 

The history of this extraordinary act is soon told. 
The attorney-general had filed ex officio informations 
against the clergy of the two provinces, for having 
acknowledged the legatine authority of Cardinal 
Wolsey. The king sought to enforce against them the 
penalties inflicted by the 27th Edw. III., cap. 1, and 
the 16th Richard II., cap. 5. By these acts, they had 



188 



THE HISTORY OF 



chap. v. incurred the pains of premunire ; which confiscated all 
The their estates, banished them from the country, and 

supremacy. 

placed them out of the king's protection. They pur- 
chased of the king a pardon. The clergy of the pro- 
vince of Canterbury taxed themselves to the amount of 
one hundred thousand pounds ; those of the province 
of York to a smaller amount. Contrition was required 
to be followed by submission. The act, therefore, 
recites that " the convocations had acknowledged" the 
king to be supreme head of their church. They had, 
however, inserted the words, " quantum per legem 
" Christi licet." " I will have none of your quanturus, 
" nor tantums," exclaimed the king, when the provision 
was shown him. Had the limitation been admitted, the 
sting of the law would have been extracted. It therefore 
passed in its present form. Refusing to acknowledge 
the king's supremacy in the church, though never 
denying it in the state, cost Sir Thomas More, the then 
lord chancellor, and Fisher, bishop of Rochester, their 
heads. Many others, of inferior rank, were punished 
for the same offence. 

It will be observed, that the act is declaratory. It 
imposed no penal sanction. That was reserved till the 
AD at i547 t * me °^ -Edw. VI. The first of his reign, cap. 12, sec. 
6, declared, " that any person who by open preaching, 
" express words or sayings, should afiirm that the 
" king of this realm, for the time being, is not, or 
" ought not to be, the supreme head on earth of the 
" church of England and Ireland ;" together " with 
" their aiders, comforters, abettors, procurers and 



CHURCH LAWS. 



189 



" counsellors," should, for their first offence, " lose and chap. v. 

' ' ' Sect. 3. 

" forfeit to the king all his and their goods and ^ 

, , ~, , , . , supremacy. 

" chattels, and also suffer imprisonment at the king s 
" will and for the third offence, " shall be deemed 
" and adjudged high traitors, and shall suffer pains of 
" death ; and lose and forfeit all their goods and 
f chattels, lands and tenements, as in cases of high 
" treason." 

Mary was no sooner married to Philip than parlia- 
ment repealed the act of Henry, and declared (1st and 
2nd Philip and Mary, cap. 8, sec. 43), "that the title a.d. 1553. 
" Supreme Head of the Church never was, nor could 
" be, justly or lawfully attributed or acknowledged to 
" any king and sovereign governor of this realm ; nor 
" in anywise could or might, rightfully, justly, or law- 
" fully, by any king or sovereign governor of this realm, 
" be claimed, challenged or used." 

It went on to declare, " And where your highness, 
" sovereign lady, since your coming to the crown of 
this realm, of a good and Christian conscience omitted 
" to write the said style of supremacy, as well in gifts, 
\] grants, letters patent ; and also others have done the 
" same, as well in your time as before ; and forasmuch 
" as, notwithstanding any law concerning the said style 
" of supremacy, it was in the free choice, liberty, and 
"pleasure of the king of this realm, and of your high- 
" ness, whether you would express the same." The act 
of Edward VI. was, therefore, made void, as " tending 
" to the derogation of the Pope's Holiness or of the See 
t of Rome."— Sec. 24. 



190 



THE HISTORY OF 



chap.^v. Elizabetli returned Mary's compliment, i.e., she 
~~The repealed her sister's repeal of their father's act. The 

supremacy. 

a.d.1558. 1st of Elizabeth, cap. 1, sec. 17, re-annexed to the 
" crown such jurisdictions, privileges, superiorities, and 
" pre-eminences, spiritual and ecclesiastical, as by any 
"spiritual or ecclesiastical power or authority hath 
" heretofore been, or may lawfully be exercised or used 
" for the visitation of the ecclesiastical state and persons ; 
" and for reformation, order, and correction of the same, 
" and of all manner of errors, heresies, schisms, abuses, 
" offences, contempts, and enormities." 

By 19th section, all the officers of state, temporal 
and spiritual, were obliged to swear that in conscience 
they believed " that the queen is the only supreme 
" governor of this realm, as w T ell in all spiritual or eccle- 
" siastical things or causes, as temporal." By using 
the word " governor," instead of " head," the objection, 
founded on seeming propriety, that a female ought not 
to be styled " head" of the church, was obviated. But 
this title was afterwards used in several acts in the reign 
both of Elizabeth and Anne. 

The powers conferred on the sovereign by this title 
are of an extremely interesting description. We 
confine ourselves to such powers as are provided by 
express and unrepealed law. They are the following : — 

1. By the 25th Henry VIII., cap. 21 , sec. 2, the king- 
is said to be " recognised supreme head of the church 
" of England by the convocations" (he was not yet 
authorised by statute law to assume this title), "and as 
" such entitled to receive Peter pence, portions, and 



CHURCH LAWS. 



191 



" other payments made to the bishop of Rome;" and C f e ^- 3 V - 
also to obtain " such licence, dispensation, faculty, 

, , , i n it- supremacy. 

" receipt, delegacy, breves, bulls, and other instruments, 
" from the archbishop of Canterbury, as had been accus- 
" tomed to be obtained from the see of Rome," provided 
the same " were not repugnant to the law of Almighty 
" God." — Sec. 3. If the archbishop refuse such licences, 
dispensations, or other writings, they may be issued by 
the lord chancellor, and the archbishop punished for 
the neglect and disobedience. 

2. The monarch can appoint " a vicegerent, for good 
" and due administration of justice in all causes and 
" cases touching the ecclesiastical jurisdiction, and for 
" the godly information and redress of all errors, 
"heresies, and abuses in the said church of England." 
The first vicegerent appointed by the king was "Thomas, 
" LordCrumwell, who, with all other persons which here- 
" after shall have the said office of the grant of the king, his 
" heirs, and successors, shall sit and be placed upon the 
" same form that the archbishop of Canterbury sitteth 
" on, and above the same archbishop and his successors ; 
" and shall have voice in every parliament, to assent or 
"dissent, as other the lords of the parliament." — 31st 
Henry VIII., cap. 10, sec. 2. This act is styled " For 
" placing of the Lords," and to this day regulates the 
order of that house. 

3. The monarch can make archbishops and bishops, 
to whose " collation and gift all archbishopricks and 
" bishopricks only appertaineth." — 1st Edward VI., 
cap. 2. 



192 



THE HISTORY OF 



chap v. 4. The monarch can solve all doubts as to the 

Sect. 3. 

ri^ making* and consecration of archbishops and bishops. 

supremacy. 

" By the supreme and absolute authority of the queen's 
"highness, and which she hath used in and about the 
making and consecrating archbishops and bishops, 
" by which it is evident that there is no cause of scruple, 
" ambiguity, or doubt," but her highness, " by her 
"supreme power and authority, hath dispensed with all 
" causes or doubts of any imperfection or disability that 
" can or may in anywise be objected." — 8th Elizabeth, 
cap. 1, sec. 2. And by the 39th Elizabeth, cap. 8, 
sec. 3, " any ambiguity or question as to the making, 
" ordaining, or depriving any archbishop or bishop by 
"authority or licence of the queen, heretofore made 
"between the beginning and the fourth year of her 
"reign," are removed. 

5. The monarch can suppress all errors, heresies, 
schisms, abuses, offences, contempts, and enormities in 
the church of England. — 26th Henry VIII., c. 1 ; 
1st Eliz., cap. 1, sec. 17. 

6. He can order what ornaments shall be used in the 
church, or by ministers thereof. — 1st Eliz., cap. 2, sec. 26. 

7. With the sovereign it rests to determine the 
ceremonies or rites of the church, " as may be most 
" for God's glory, the edifying of the church, and due 
" reverence of Christ's holy mysteries and sacraments." 
— 1st Eliz., cap. 2, sec. 26. 

8. The king has superintendence of the whole eccle- 
siastical estate of the realm, ecclesiastical things, and 
ecclesiastical causes. — 1st Eliz., cap. 1, sec. 17. 



CHURCH LAWS. 



193 



9. The creation of new bishoprics in England, or C ^- 3 V - 
within the king's dominions. " Our sovereign lord, of The 

supremacy. 

" his most gracious and blessed disposition, by his most 
" gracious letters patent hath made, erected, incorpo- 
" rated, and established divers and sundry bishops, and 
" sees of bishops, that is to say, Chester, Gloucester, 
" Peterborough, Bristol, and Oxford." — 25th Henry 
VIII., cap. 20, sec. 4; and 34th Henry VIII., cap. 17, 
sec. 3. 

1 0. He can command the archbishop of Canterbury to 
prepare certain forms of public prayer upon extraordi- 
nary occasions ; and approve, alter, or reject such forms, 
and sustain the authority of the archbishop of Can- 
terbury in requiring all archbishops, bishops, and clergy 
to use such forms in the manner prescribed. Without 
such order, neither the archbishop, " nor any prelate," 
can issue any " writing or instrument in causes unwont 
" and not accustomed to be obtained at the court of 
" Rome" (statute, 25th Henry VIII., cap. 21); nor 
do other than suggest the use of such prayers as 
are already prepared and prescribed in the Common 
Prayer Book. 

11. The monarch has certain rents and profits from 
all ecclesiastical promotions, called first fruits. These 
were, in the time of Henry IV., a.d. 1404 (6th Henry 
IV., cap. 1), pronounced an occasion of " horrible 
" mischiefs, and a damnable custom, introduced of new 
" in the court of Rome." By the 26th Henry VIII., 
cap. 3, a.d. 1534, they w r ere transferred to the king, 
seeing that he is " now recognised supreme head on 

o 



194 



THE HISTORY OF 



chap.^v. " earth, next and immediately under God, of the church 
~ " of England." Mary, in 1555, not only renounced 

supiematj. ^ fai^ |} U t a l so t ne first fruits. (2nd and 3rd Philip 
and Mary, cap. 4.) They were, however, in 1558, 
re-annexed to the crown under 1st Elizabeth (cap. 4), 
and, finally, in 1703-4, Queen Anne (2nd and 3rd, 
cap. 11), who, as "the only supreme head on earth of 
" the church of England," was graciously pleased to 
remit the payment, and to grant them to the poor 
clergy. 

12. The delegation to governors in the colonies of 
ecclesiastical powers. The governor of the Cape of 
Good Hope, therefore, thus writes : — " In the absence 
" of a bishop, the governor is ex officio ordinary." * 

13. The alteration in " the names of the king, queen, 
" or royal progeny, in all prayers, litanies, and collects, 
" from time to time, fitted to the present occasion, 
" according to the direction of lawful authority." — 
13th and 14th Charles II., cap. 4, sec. 25. This 
■■ lawful authority" originally signified "the sovereign 
" and the archbishop of Canterbury out of council, now 
" it means the sovereign in council." f 

* Eighth Report of Colonial Land and Emigration Commissioners, 
1848, page 119. 

f Stephens on the Common Prayer, page 566. 



CHURCH LAWS. 



195 



SECTION IV. APPOINTMENT OF ARCHBISHOPS AND 

BISHOPS. 

" When cities were first converted to Christianity c §£f 4 v - 
" the bishops were elected by the clergy and the people, 
" for it was thought convenient that the laity, as well 
" as the clergy, should be considered in the election of 
" their bishops, and should concur in the election ; that 
" he, who was to have the inspection of them all, should 
" come in by a general consent." * 

In the council held at Clermont, a.d. 533, it was 
decreed, " that he who is a candidate for a bishoprick 
" shall be ordained by the election of the clergy and 
" citizens." f 

The case is widely different now. Not only have 
the people no voice, but the church itself is not heard 
in the election of its bishops. Although spiritual per- 
sons, exercising spiritual functions, they are constituted 
by a secular head, as they are appointed by the sole 
authority of the crown. 

One of the most emphatic acts, upon the affairs of 
the church, was that passed at Lincoln ; it is entitled 
" Articuli Cleri," and is the 9th Edw. II., cap. 14. A..D.1.315. 
Speaking of the appointment of bishops, it says : — 
" If any dignity be vacant, where election is to be 
" made, it is moved, that the electors may freely make 
" their election, without fear of any power temporal ; 

* Burn's Ecclesiastical Law, vol. i., p. 199 (Bishop), 
t Milner's Church History, vol. iii., p. 24. 

o2 



196 



THE HISTORY OF 



ch^v- " and that all prayers and oppressions may in this 
Appointment " behalf cease." This was the request of the church. 

ofarchbishops 

and bishops. " The answer : they shall be made free, according to the 
u form of statutes and ordinances^ This was the reply 
of the crown. 

What the form of this free election was, may be 
gathered from a subsequent law. It is the 25th 
a.d^isgo. Edward III., stat. 6. It describes " free elections," as 
they formerly bad been, as a " grant by the king's pro- 
" genitors upon a certain form and condition as to 
" demand license from the king to chuse ; and after the 
" election to have his royal assent, and not in other 
" manner." 

In other words, the church had permission to elect, 
the nomination of the person might seem to rest with 
the church ; but over the election the crown had a veto. 
Modern legislation has withdrawn even this retiring 
remnant of ecclesiastical freedom. The 25th Henry 

Statute 

a.d.1533. VIII., cap. 20, sec. 4, appoints the manner in which 
archbishops and bishops are to be elected. It is as 
follows : — 

" "Whenever any archbishoprick or bishoprick shall be 
"i void, the king may grant to the dean and chapter a 
" licence under the great seal, as of old time hath been 
" accustomed, to proceed to the election of an archbishop 
" or bishop with a letter missive, containing the name 
" of the person which they shall elect and chuse.* 
" By virtue of which licence the dean and chapter shall, 

* This letter missive restricts the election to the person named, and 
therefore renders a free election impossible.— See Appendix, No. III. 



CHURCH LAWS. 



197 



" with all speed and celerity, in due form, elect and chap^v. 
" ch use the said person named in the said letter mis- Appointment 

m (* ii-i 1-1 t of archbishops 

" sive, to the office of archbishop or bishop, and none and bishops. 

" other. And if they do defer or delay their election 

" above twelve days, then, for such default, the king's 

" highness, his heirs and successors, at their liberty 

" and pleasure, shall nominate and present, by their 

" letters patent, such a person to the said office and 

" dignity as they shall think able and convenient- for 

" the same." 

By other sections of the act, provision is made for 
the consecration of the person elected by the dean and 
chapter, or nominated and presented by the monarch. 
Delay, or refusal, on the part of those archbishops and 
bishops whose offices for the consecration may, by the 
king, be required, exposes them to certain penalties. 
And " the dean and chapter shall refuse or delay for 
" twenty days to elect the person nominated ; and all 
" persons who admit, maintain, obey, or allow any 
"censures, inhibitions, or other process or act, in 
"hindrance of the due execution of the act," then 
" every dean and particular person of the chapter, and 
" every archbishop and bishop, and all other persons so 
" offending, and their aiders, counsellors, and abetters, 
" shall run in the dangers of the acts of premunire, 
" imposed by the statutes of the 25th of Edward III., 
"and 16th Richard II.," i.e., fine, outlawry, confiscation 
of goods, lands and tenements ; and also give security 
for good behaviour. 

The most expressive comment upon this extraor- 



198 



THE HISTORY OF 



chap.^v. dinary act is supplied from the 1st Edward VI., cap. 2. 

Appointment It Says '. 

of archbishops 

and bishops. « Forasmuch as the elections of archbishops and 

Statute, 

a d i55( . u bi sn0 p S by the deans and chapters be as well to the 
" long delay as to the great costs and charges of such 
" persons as the king's majesty giveth any arch- 
" bishoprick or bishoprick unto ; and whereas the said 
" elections be in very deed no elections, but only, by virtue 
" of a writ of conge oVelire, have colors, shadows, or 
"pretences of elections, serving, nevertheless, to no 
" purpose ; and seeming also derogatory and prejudicial 
" to the king's prerogative royal, to whom only apper- 
" taineth the collation and gift of all archbishopricks 
" and bishopricks :" u Be it enacted, therefore, that 
" from henceforth no conge delire be granted, nor 
" election of any archbishop or bishop made ; but that 
" the king may, by his letters patent, at all times when 
1 any archbishoprick or bishoprick is void, confer the 
" same to any person whom the king shall think meet."* 
By virtue of the above act, Edward made all his 
bishops by letters patent. Among others was Miles 
Coverdale, who was appointed bishop of Exeter. In 
the letters patent the king used these words — " Nos 
"nominamus, facimus, creamus, declaramus et consti- 
" tuimus per praesentes."+ 

* The plea that the old mode of election ought to be avoided, because 
of f the great costs" to the person appointed bishop, was evidently itself 
a pretence ; for, in the 2nd section of this very act, it is provided that " all 
" such fees, interests, and duties, as of old time have been accustomed, 
" shall be paid, done, and yielded." 

f Rymer's Foedera, vol. xv., page 283. 



CHURCH LAWS. 



199 



As might be expected, the act of Edward was cl | e A J* 4 v * 
repealed immediately upon the accession of Mary, Appointment 

of archbishops 

which repeal was, in its turn, set aside, when Elizabeth and bishops, 
came to the throne. Instead of reviving the act of 
Edward, which took away all power, except ministerial, 
from the dean and chapter, in the election of bishops, 
Elizabeth's parliament revived the 25th Henry VIII. 
In other words, the 8th of Elizabeth brought back a 
custom, which a previous law had pronounced " a color, 
" a shadow, and a pretence." And such, to this day, are 
all episcopal elections. 

A new order of bishops was created by the 26th of 
Henry VIII., cap. 15. They were called suffragans, suffragan 
whose duties were confined to " the more speedy 
" administration of the sacraments and other cere- 
" monies." The towns of Thetford, Ipswich, Colchester, 
Dover, Guilford, Southampton, Taunton, Shaftsbury, 
Molton, Marlborough, Bedford, Leicester, Gloucester, 
Shrewsbury, Bristol, Penrith, Bridgewater, Not- 
tingham, Grantham, Hull, Huntingdon, Cambridge, 
Berwick, St. Germain's in Cornwall, and the Isle of 
Wight, were to be taken as sees of suffragan bishops. 
If the archbishops or bishops " were disposed" to have 
a suffragan, they might name two persons to the king, 
one of whom he was to appoint ; and having done so, 
he could require the archbishops of Canterbury or York 
to consecrate his nominee. This act Mary repealed ; 
it was revived by the 1st of Elizabeth, cap. 1, sec. 9 ; 
but has not for many years been carried into effect. 
The principle here established — that of a gradation 



200 



THE HISTORY OF 



chap.^v. in the order of the episcopate — was no innovation j it 
Appointment had obtained, both antecedently and subsequently to 

ot archbishops ,.,p , ,.[; afRf iftnf fr t'\i t t n 5 

and bishops, the passing of the above law. In Lanfranc s canons we 
^iT 1075 rea( ^5 It ^ s ordained, according to the council of Milevis, 
" Brague, and the fourth of Toledo, that the bishops 
" should take place, according to the time of ordination, 
" unless their sees had the privilege of precedence by 
" ancient custom. The seniors being asked what they 
" had seen or heard as to this point, had time given 
" them till next day to make answer, as they said, viz., 
* that the archbishop of York ought to sit at the right 
M hand of him of Canterbury ; he of London on the 
" left ; Winchester next to York ; but if York were 
" absent, then London on the right hand, and Win- 
" Chester at the left of Canterbury." 
statute The statute (31st Henry VIII., cap. 10, sec. 3) some- 
what varies this arrangement. Canterbury takes pre- 
cedence. " Next to him, on the same form and side, 
" shall sit the archbishop of York ; next to him, on 
" the same form and side, the bishop of London ; 
" and next to him, on the same side and form, the 
" bishop of Durham ; and next to him, on the same 
" side and form, the bishop of Winchester; then all the 
" other bishops, of both provinces of Canterbury and 
11 York, shall sit and be placed on the same side, after 
" their ancienties, as it hath been accustomed." 

This gradation of rank is not merely nominal. 
Every bishop is subordinated to the authority of the 
archbishop of Canterbury. With him it rests to super- 
intend, counsel, or direct, all other bishops. In case of 



CHURCH LAWS. 



201 



heresy, bis grace would try them ; and if justified by C ^ t p - 4 V - 
proof, deprive or suspend them. Nor is it reserved Appointment 

of archbishops 

for such rare occurrences to illustrate the supreme and bishops. 

executive authority of the archbishop of Canterbury. 

He has a more tangible method of constantly reminding 

bishops of their dependant position. " Every bishop," 

(says Gibson, 133,) " whether created or translated, is 

" bound, immediately after confirmation, to make a 

" legal conveyance to the archbishop of the next 

" avoidance of one such dignity or benefice, belonging 

" to his see, as the said archbishop shall chuse and 

" name, which is therefore commonly called an option. 

" Ever since Cranmer's time, the way hath been to 

" convey the advowson either of the first dignity or 

" benefice that should fall." 

The seals of a deceased bishop are also surrendered 
to the archbishop ; and, in order to prevent their being 
used to ill purposes by executors or others, they are 
to be broken. 

In his own diocese, each bishop acts upon his per- separate 

A authority of 

sonal responsibility. A very ancient canon retains to blsh °i )S - 
this day all the freshness of a new enactment upon this 
point, for it is constantly and inviolably acted upon : — 
" Let the bishop, who for the time being is honoured f ™ ^ 
"with the pall by the apostolical see, promote and 
canonically ordain them [the bishops] to the sacer- 
" dotal honour ; and let them be subject to his ordering 
i\ only ; with this express condition, that none of the 
V bishops presume to meddle with the rights of another 
" prelate ; but that every one preserve his own rights 



202 



THE HISTORY OF 



chap v. " untouched, and study to instruct ^nd convert the 
Appointment " people." * At the time this canon was made, there 

otarch bishops 

and bishops. were twelve bishops in Britain ; but, although the 
number has since that period been greatly augmented, 
these distinct rights of prelates have not, for above 
one thousand years, been invaded. They have no more 
authority over each other, so as to interfere with 
matters out of their respective dioceses, than have the 
rectors or vicars of different parishes any right to 
order or govern one the other. 

In the appointment of a bishop, the people have an 
assumed concurrence, as well as in the ordination of a 
priest. At the time of the confirmation of a bishop, 
objectors are called upon to state their dissent. Mon- 
tague was, in 1628, objected against by one Jones, on 
account of his popish tendencies. But as the objection 
was not given in writing, signed by an advocate, nor 
presented by a proctor, it was overruled. In the more 
recent case of Dr. Hampden, the objectors took the 
precaution of observing these forms. They, however, 
availed not. The court of Queen's Bench held that 
the objection, though right in form, was yet void ; 
inasmuch as the summons to objectors is itself only a 
matter of course; and has not been included in, or 
recognised by, the law. 



* Johnson's Ecclesiastical Laws (a.d. 079.) 



CHURCH LAWS. 



203 



SECTION V. EPISCOPAL SEES. 

The crown of this realm is the sole fountain of all chap. v. 

Sect. 5. 

ecclesiastical as well as civil dignity. The sovereign ~ 
has uniformly claimed and exercised the right of 
creating bishops, and also of apportioning out certain 
territorial districts as archbishoprics or bishoprics. 
It was so in the Anglo-Saxon times. Bede, under 
date 971, states, "that by favour of King Edred and of 
" all his witten (parliament) Oskytel was consecrated 
" archbishop." 

In the time of La n franc, it was " granted by royal ^fg^ 
" favour and the authority of synod to three bishops to 
" remove from villages to cities : i.e., Herman, from 
" Thirburn to Salisbury ; Stigand, from Seolsey to 
" Chichester ; and Peter, from Lichfield to Chester. 
" The case of some who are yet in villages, is deferred 
" till the king return from foreign parts." 

After Lanfranc's death, in a.d. 1089, William Rufus 
seized the revenues of the see, and for five years refused 
or neglected to appoint a successor. At length, the 
bishops presented to the king a petition, praying he 
would grant them leave to send a form of prayer to be 
used in all the churches, " that God would move the 
" heart of the king to choose an archbishop." " You 
" may pray as you like, I shall do as I like," was the 
haughty reply , # 

Nor was it till 1093 that Anselm (who had disputed 

* Henry's History of England, vol. v., p. 280. 



204 



THE HISTORY OF 



W. with Rufus, and also with his brother, Henry I., con- 

beet. 5. 

Episcopal cerning the right of investiture,) was consecrated. 

sees , t tt r # ti 

Bishops received a ring and pastoral staff from the king, 
upon their doing homage to him, before their consecra- 
tion ; and, from time immemorial down to the present, 
they have done homage to the crown, for their temporali- 
ties. Spelman (vol. ii. page 435) informs us that, in 1301 , 
William de Gainsburgh was made bishop of Worcester 
by papal bull. The king not only obliged him to 
renounce the " temporalia," but fined hhn one thousand 
marks, for admitting a bull so prejudicial to the rights 
of the crown. 

The principle was established in a declaratory 
A S D at i225. act : — viz., the 9th of Henry III., cap. 5, which says, 
" The custodies of archbishopricks, bishopricks, and 
" dignities vacant, appertain to us ; such custodies shall 
" not, however, be sold." 

In the next century, another act passed, 14th of 
a.d. mo. Edward III., cap. 3, which was designed to repress the 
arbitrary conduct of the monarch, by providing that 
" the temporalities of the archbishops and bishops 
" shall not be taken into the hands of the king, without 
u a true and just cause, according to the law of the land, 
" and judgment thereupon given." The church thus 
drove the monarch to a court of law, before he could 
take actual possession of its property. It therefore 
thought itself safe ; and so it would have been, had it 
not abused its privilege. But the Pope, not content 
that the plea should be tried " in the king's court," 
invaded the prerogative of the crown, by himself 



CHURCH LAWS. 



205 



" ordaining to translate some prelates out of the realm, c |^ t R 5 v - 
" and some from one bishoprick into another within the Episcopal 

sees. 

" realm." 

This act of aggression was denounced, by the 16th of 

)?. o> _ KJ 3t t ui L Statute, 

Richard II., cap. 5, derogatory "to the crown oi a.d.is93. 

" England, which hath been so free at all times, that it 

" hath been in no earthly subjection, but immediately 

" subject to God in all things touching the regality and 

" to none other, that it should be submitted to the Pope ; 

" and the laws and statutes of the realm defeated and 

" avoided at his will." It therefore declared, that " if 

" any purchase or pursue, or cause to be purchased or 

" pursued, in the court of Rome, or elsewhere, any 

" bulls, instruments, or other things, which touch the 

" king and his regality ; and they which bring them 

[j within the realm, or them that receive, or make 

" thereof notification, together with their notaries, pro- 

" curators, maintainers, abettors, fautors, and counsellors, 

" shall be put out of the king's protection, and their 

" lands and tenements, goods and chattels forfeited 

" to the king ; and be attached by their bodies, if they 

" may be found, and brought before the king and his 

" council, there to answer to the case ;" or, if not found, 

they shall be put in exigent and outlawed, according to 

the 27th of Edward III., cap. 1. 

Nor are these unrepealed and still necessary acts 
opposed to the decision of the church itself. By one of 
the articles (the 12th) of Clarendon, (passed a.d. 1164, 
and therefore two hundred and twenty-eight years ante- 
cedent to the above first mentioned act,) it declared, 



206 



THE HISTORY OF 



FgJySiJ " wnen an archbishoprick, bishoprick, abbacy, or 
Episcopal " priory is vacant, it ought to be in the king's hand, 

sees. 

" and he shall receive all the rents and issues, as of his 
" own demesnes ; and when the church is to be provided 
" for, the king is to send his mandate to the chief 
" parsons (dean and chapter) of that church, and the 
" election ought to be made in the king's chapel, and 
" by the advice of the king's parsons, whom he shall 
" call for this purpose, and the elect shall do homage 
" and fealty to the king as to his liege lord for his life 
" and members and earthly honours (with a saving to 
" his order) before he be consecrated." 

The " homage" referred to is part of the feudal 
system. The form, as stated by law, (17th Edw. II. 9 
statute 2, a.d. 1324,) consisted in the man holding his 
hands together, between the hands of his lord, and 
saying, " I become your man from this day, both for 
" life, for member, and for worldly honour." But every 
bishop, dean,- or other ecclesiastical body politic (sole), 
who holds of the crown in capite, omits, at the time 
of homage, the words, " I become your man," because 
each one hath professed himself the man of God. But 
he does say, " I do homage unto you, and to you shall 
" be true and faithful ; and faithful to you bear, for the 
" lands and tenements which I hold of you ; and the 
" service due of the temporalities of my archbishopric 
" or bishopric, the which I claim to hold of you ? 
" and the which ye gave and yield to me, I will be 
" observant." # 

* Coke's Institutes, vol. i., p. 258. 



CHURCH LAWS. 



207 



Iii fact, the whole ecclesiastical estate pertains to the c f e ^; 5 y ' 
crown. In acknowledgment of this, and in addition to Episcopal 

sees. 

the homage of archbishops or bishops, every " eccle- 

" siastical person, holding dignity, benefice, office, or vih! 5 ?^3. 

L sect. 2 aud 9. 

" promotion spiritual," is by law required to pay to the 
king first fruits and profits for one year ; " and above 
" this, the king, as the only supreme head on earth, next 
* immediately under God, of the church of England, 
" is entitled to the value of the tenth part of the yearly 
" revenues of any archbishoprick, bishoprick, or other 
" benefice or promotion spiritual, whatsoever." But 
we need not go to payments, for confirmation of a 
principle. We have this latter established beyond 
dispute, in the 1st of Elizabeth, cap. 1, sees. 16 and 17. 
The clauses are as follows : — 

" And to the intent that all the usurped and foreign 
" power and authority, spiritual and temporal, may for 
" ever be already extinguished, and never be used and 
" obeyed within this realm, or any other your majesty's 
" dominions or countries, may it please your highness, 
" that it may be further enacted, by the authority 
" aforesaid, that no foreign prince, parson, prelate, 
*' state or potentate, spiritual or temporal, shall at any 
" time use, enjoy or exercise any manner of power, 
u jurisdiction, superiority, authority, pre-eminence or 
" privilege, spiritual or ecclesiastical, within this realm, 
" or within any other your majesty's dominions or 
" countries that now be, or that hereafter shall be ; but 
" from henceforth the same shall be clearly abolished." 
The papal authority having thus been destroyed 



208 



THE HISTORY OF 



C s T ett P '5 V ' another power was substituted. The .succeeding clause 
Episcopal therefore provided, "that such jurisdictions, privileges, 

sees. ... 

" superiorities and pre-eminences, spiritual and eccle- 
" siastical, as by any spiritual or ecclesiastical power or 
" authority hath heretofore been or may be lawfully 
" exercised or used, by common or statute law, for the 
" visitation of the ecclesiastical state and persons, shall 
" be annexed and united to the imperial crown of this 
" realm." 

It appears, therefore, that by prescriptive and imme- 
morial right, as well as by statute law, the sovereign of 
this country has the sole power to create new dioceses. 
This may be done by letters patent, as was the case with 
Peterborough, Chester, Bristol, Gloucester, and Oxford, 
by Henry VIII. The act which refers to such creation 
(34th and 35th Henry VIII., cap. 17,) states, that the 
king had also, " by letters patent, given to each see 
" divers manors, lands and tenements." They were, it 
is true, parts of the remains of dissolved monasteries, 
which this monarch had had; by law, delivered into his 
hands. It was at his option, therefore, to retain the 
possession to his own use, or surrender it to ecclesiastical 
purposes. He gave up a portion, that he might with 
more credit keep the remainder. 

It may not, perhaps, be unnecessary to add upon this 
point, in further illustration of the fact, that bishop- 
rics are at the sole disposal of the crown, that every 
newly appointed bishop, after his consecration, not only 
does homage, but receives from the sovereign a resti- 
tution (as it is called) of the temporalities of the See. 



CHURCH LAWS. 



209 



The curious reader will find, in Rymer's Fcedera. chap. v. 

5 J 9 Sect. 5. 

numerous records upon this point. One, in the year Episcopal 
1628, contains these words, "ei restitutimus per pre- 
" sentes," and they are the terras now usually adopted. 
But for this restitution the bishop would be restricted to 
spiritual functions. 

In the words of Coke, we sum up the whole : — $ All 
" the bishopricks in England" [or the British empire] 
" are of the king's foundation, and the king is patron of 
■* them all." # So, in fact, is the express provision in the 
25th Henry VIII., cap. 20, sec. 6, "that every arch- 
" bishop and bishop, suing their temporalities out of the 
" king's hands, as hath been accustomed, and making a 
" corporal oath (homage) to the king, and to none 
" others, shall have and take their only restitution out 
" of the king's hands, of all their possessions and 
" profits, spiritual and temporal." 



SECTION VI. CHURCH PROPERTY. 

Whatever property is now possessed by the ecclesias- 
tical corporation of this country, has been bestowed upon 
it by individual bounty. The state, as such, has but once 
bestowed a pecuniary grant. (See " Churches," p. 228.) 
It may have confirmed the possession of lands 
given by bequests ; it has watched over, by means of 
the court of chancery, the appropriation of money 
arising from these and other sources ; it has often 
materially altered the uses to which such revenues were 

* Coke's Institutes, book i., chap. viii. 
P 



210 



THE HISTORY OF 



°? A F'7' to ^ e applied, and in not a few instances alienated them 
~ cimrch ~ from their original purpose ; it may even have gone so 

property- 
far as to uphold, by grants from the public money, 

certain pre-existing institutions ; — but the state did not 
create the original portion of church property. Even 
tithes came as gifts from the proprietors of estates, and 
are, in many of the original grants, and in not a few 
statutes, recognised and stated as " offerings." 
origin. The greater part of the property belonging to the 
church came into its possession by bequests, or fell into 
its hands by the operation of those laws it had made 
respecting the estate of intestates. A reference to 
section 8, chapter hi., relative to wills and administra- 
tions, will illustrate the daily opportunities those laws 
afforded priests to enrich the church. 

The accumulation of land by these and other means 
at length compelled the state to attempt to put a stop 
Mortmain, to the evil. We have, therefore, acts relating to mort- 
main. The first was in a.d. 1225 (9th Henry III., 
cap. 36.) But this law the church sought to frustrate, 
by decreeing, eleven years afterwards, that no man should 
make his will unless the parish priest were present, when 
at least money might be bequeathed. Against this 
ecclesiastical cupidity the courts of common law were 
always opposed. We have a very curious illustration 
canons, f this fact from the canons. Boniface, archbishop of 

A.D. 1261. 1 

Canterbury, uncle by the mother to Eleanor, queen 
consort to king Henry III., published his constitutions 
from Lambeth. Among the rest, he declared — 

" Sometimes princes and other faithful men do, by 



CHURCH LAWS, 



211 



" their charters, o-ive possessions and liberties to churches chap. y. 

' s r > Sect. 6. 

" or prelates, in which this, or the like clause, is con- Clmrdl 

" tained: — 'All of such a fee or estate, which belongs pioperty 

"or may belong to ine, or my heirs, without any 

* exception, I give and grant ; and by this charter 

" confirm to such a church or monastery, or to the 

"prelates and officers thereof:' — And if afterwards a 

" dispute arise in the secular court, concerning any 

" particular article of the purtenances, not expressly 

" mentioned in the charter, the secular judges affirm 

" that the charter is void and null, because that article 

" is not expressed in it ; and so the word all, according 

" to them, signifies nothing, but what is particularly 

u expressed ; and if the article of liberty contained in 

" the charter be expressed by special words, the same 

"judges affirm that it is void and null, if the church or 

" monastery hath not used that liberty." Thanks to 

the ingenuity of secular men, for thus providing an 

effectual remedy against priestly cupidity ! 

But though the first secular law, relative to lands 
held in mortmain, was very stringent, it was evaded. 
The loth Richard II., cap. 5 (a d. 1391), says that, 
" Now of late, by subtile imagination, and art, and 
" engine, spiritual persons have entered in divers 
" lands, without licence of the king and of the chief 
" lords." 

" The subtile imagination " was again and again 
repeated, so that a series of laws (the recital of which 
would be tedious) have, at various periods, been made 
by the secular authority, which amount to a pro- 

p 2 



m .a i 



212 THE HISTORY OF 

chap^v. hibition to dispose by will of land, or of money to be 
church laid out in land, for any religious purpose. 

An exception has, however, been made in favour of 
" grants of land, houses, titles, advowsons, rent-charges, 
" and other hereditaments, or of money to be laid out in 
" lands, for the site of a church, chapel, or churchyard, 
" parsonage-house, or glebe, or the use of any church 
" or chapel, or incumbent, or the endowment of any 
" church or minister," notwithstanding the Mortmain 
Acts, or the absence of a licence to hold : provided 
such grants do not exceed in value £300 per year. 
3rd and 4th Vict., cap. 60, sees. 2 and 17. 
Personal That church lands were given by persons and not by the 
a.d.1350. state, is distinctly affirmed by ancient laws. Thus, the 
25th of Edward III., stat. 6, says, " The holy church 
" of England was founded in the estate" [i.e., the legal 
possessions, not the polity) " of prelacy by the king's 
" progenitors, and the earls, barons, and other nobles 
''and their ancestors, to inform them and the people 
" of the law of God; and to make hospitalities, alms, 
" and other works of charity, in the places where the 
" churches were founded, for the souls of the founders, 
" their heirs, and all Christians ; and certain possessions 
" were assigned by the said founders to the prelates 
" and other people of the holy church ; and, especially, 
" possessions were assigned to archbishops, bishops, 
" abbots, priors, and all other people of holy church." 

The phraseology employed is remarkable. The 
" founders," " ancestors" of " kings, earls, barons, and 
" other nobles" bestowed lands in their individual, and 



CHURCH LAWS. 



uses. 



not in their legislative capacity. Had this latter been chap.^v. 
the fact, the usual parliamentary terms would have ciimcii 
been employed, conveying the idea of its being an act of P P Y 
the legislature. 

This act of Edward III. was copied by the 24th of 
Henry VIII., cap. 12. It says, "The king's most A s ^ af ^J 2 
" noble progenitors, and the ancestors of the nobles of this 
" realm, have sufficiently endowed the said church, both 
" with honour and possessions." 

As trust property, the possessions of the church are, Perversion of 
and always have been, subject to the supervision and 
authority of law ; and never were supervision and 
authority more imperiously required. The statute of 
Edward III., just referred to, based the interference of 
the state upon the fact, that these possessions, which did 
then " extend to great value," were, " by the bishop of 
" Rome, accroached, against the good disposition and 
" will of the first founders," — sec. 2. It then assigned 
" to prelates and other people of holy church, the free 
" collations and presentments in their dignities and other 
" benefices in the manner as they were enfeoffed by their 
" donors } or, as in another section (the 3rd) it is stated, 
" they were granted by the king's progenitors, and the 
" ancestors of other lords, founders of the said dignities 
" and benefices." 

The particular form this misappropriation of church 
revenues then assumed, is stated in the act to have been 
that the Pope granted benefices " to aliens and to 
" cardinals, as if he had been patron." This he did to 
such an extent, that, " if suffered, there should scarcely 



214 



THE HISTORY OF 



CHAP. V. 

Sect. 6. 



Church 
property. 



Alienation of 
church lands 
by ecclesi- 
astics. 



Canon, 
A.D. 1222. 



Statute, 
A.D. 1558. 



" be any benefice but should be in the hands of aliens 
" and denizens/' 

The Pope himself also came in for a share. " Now 
" of late, the bishop of Rome, by procurement of clerks 
" and otherwise, dotli reserve to his collation, as well 
" archbishopricks, bishopricks, abbeys, and all other 
" dignities and benefices, and taketh of all such the 
" first fruits and many other profits," — sec. 2. The 
amount of these extortions, Burn places at £70,000 
yearly, which, at that time, was an immense sum. 

But if the state had just occasion to complain that 
Rome secretly withdrew a very large and constantly 
increasing revenue from English endowments, a still 
more grave condemnation was established against the 
English clergy for their alienation of church lands. 

It is true, a canon passed this year declared that 
" No abbot, prior, archdeacon, dean, or any other 
" inferior clerk, do sell, mortgage, or alienate to their 
" kindred, friends, or any other person, the possessions 
" or dignities belonging to their churches." 

The interdiction proved the practice ; and what is 
more, the practice continued in spite of the interdiction. 
Edward III. had charged the church in his day with 
appropriating its revenues contrary to the " will of the 
" first founders." It afterwards went further, and 
alienated not revenues only, but the lands themselves. 
All this was openly and for more than three hundred 
years done, by archbishops and bishops, until the law 
again stepped in, and rendered such alienation void. 

The 1st of Elizabeth, cap. 19, sec. 4, declared that 



CHURCH LAW?* 



•215 



" All gifts, grants, feoffments, fines, or other convey- c " e ^ t P g Y 
" ance or estate done or suffered by any archbishop or church 

property. 

" bishop, of any houses, castles, lands, tenements, or 
£ hereditaments, being* parcel of the possessions of his 
" archbishoprick or bishoprick, to any person or persons, 
1* bodies politic or corporate, whereby any estate should 
M pass from the same, shall be utterly void." 

Still, a most extraordinary proviso was introduced. 
After the word " corporate," the following words are 
inserted in a parenthesis, (" other than the queen's 
" highness, her heirs or successors. ") A moral and 
legal anomaly was thus created. The crown might, 
and did receive, from archbishops or bishops, lands, 
which no other person or body could receive. And so 
the law remained during all Elizabeth's reign. 

James I. (cap. 3) surrendered the right, "out of his 
" meer and godly motion, and of his blessed disposition 
" for the public good, without all regard of any private 
" respect." So that neither the sovereign nor any 
subject can now " have any estate pass to them out of 
" any archbishoprick or bishoprick." Church lands can 
only be leased for twenty-one years, or three lives. 

The extent to which these alienations of church lands 
were carried by archbishops, bishops, and "other persons 
M of holy church," cannot now perhaps be accurately 
stated. Certain, however, it is, that the state has never 
either confiscated church property, nor diverted the parti- 
cular appropriation to an extent equal to that done by 
officers of the church, (those in whom the legal estate was 
vested). Talk of spoliation ! The ecclesiastical family, 



THE HISTORY OF 



chap.^v. or rather, the heads of the family, did once so systema- 
cimrcii tically carry on a secret and gigantic plan of rob- 

property. 

bery, against their successors, that but for the inter- 
position of law, the whole trust property of the church 
might by this time have been alienated from its pos- 
session. 

Re-appro- Men who found charitable or religious institutions 

priation of ° 

funnel™™- generally provide the rules by which they shall be 
wm of the governed. The law gives them the power of doing so. 

It does not, however, forego its power to alter or even 
annul all such rules. 
as to masses. One of the most common modes in which men 
formerly endowed the church, was to leave certain 
sums of - money payable out of their estates, or the 
estates themselves, for the celebration of masses for 
the repose of their souls. The 21st Henry VIII., cap. 
13, sec. 30, prohibited " a spiritual person from taking 
" any particular stipend or salary to sing for any soul." 
This was prior to the dissolution of monastic institutions. 
It related to salary rather than to land. It was, however, 
the thin end of the wedge, by which Henry eventually 
wrested out of the hands of ecclesiastics the greater 
part of their possessions. 

Edward VI. carried the principle as to masses still 
further. The 1st of that monarch, cap. 14, took away 
not merely the salary of chantry priests, but " all 
" manors, lands, tenements, rents or other things, given 
" by will, devise or otherwise, for the finding of any 
" chantry priest, and wherewith he was sustained," 
and gave thein into " the very actual or real possession 



CHURCH LAWS. 



217 



" of tlie king, in as large and ample manner as they cguy^r. 
" had been enjoyed or occupied by their former pos- ChraTll 

property. 

" sessors. tnd j 

The reason assigned in this act for thus laying hold 
of chantry lands, is given in these words : — " A great 
" part of superstition and errors in the Christian reli- 
K giou hath been brought into the minds of men by 
' ' reason of the ignorance of the true, and perfect sal- 
" ration by Jesus Christ, and by derising ram opinions 
" of purgatory and masses, satisfactory to be done for 
' them which be departed." 

These chantry priests had been pronounced, by a pre- 
rious act (cap. 9) of the same year, "for the most 
" part, unlearned and very ignorant persons, not able 
V to do any part of their duties." Yet it was to these 
men that, in the city of York, many parish churches 
were assigned, in consequence of the priest's clear 
yearly income " not exceeding six and twenty shillings 
" and eightpence." Parishes were therefore united, the 
profits of which were not to exceed twenty pounds 
yearly. " The mayor, recorder, and aldermen," were 
authorised " to pull down superfluous churches," and 
bestow the same towards the " reparation and enlarge- 
" ment of other churches, bridges of the city, and relief 
" of the poor." 

But this 14th chapter of the 1st Edw. VI. swept 
away all the chantries in the kingdom. The whole of 
this property was henceforth to be appropriated to found 
'* grammar schools, preaching, and such godly intents 
" and purposes as, in every great town or parish," 



218 



THE HISTORY OF 



c ^ap. v. might be fixed upon by any two of the commissioners 
church ~ appointed under the authority of the act ; who were also 

property. 

authorised to make " ordinances and rules concerning: 
" the service, use, and demeanour of the priests and 
" schoolmasters" that were " to be appointed," sec. 
1 1 . More than this. Each commissioner was bound 
by oath, "as he will answer before God, to execute 
" the commission beneficially towards deans and other 
"ministers of the suppressed chantries; and towards 
' ' the maintenance of piers, jetties, walls or banks, against 
" the rages of the sea, havens and creeks," sec. 13. And, 
still further, the " king might at any time during his 
" life, at his will and pleasure, alter the nature and 
" condition of all manner of obits within the Univer- 
" sities of Oxford and Cambridge, and any other place ; 
" and the same obits, so altered, to dispose to a better 
" use, as to the relief of some poor men, being students 
" or otherwise," sec. 37. 

But if the taking away of the salary of a chantry priest 
" for singing for souls," was the thin edge of the wedge, 
it proved a powerful lever, by which more important 
and valuable church possessions were eventually seized 
by the state. 

The principle of the state stepping in between the 
will of the donor and the duty of the recipient, once 
established by Henry in respect " of singing for souls, 
" or saying masses," supplied him with after-proofs of 
power. His grand exploit was seizing the monasteries. 
ticinstitT 8 " The 27tl1 Henry VIII., cap. 28, gave to the king all 
A.r>. 1535. " such lesser monasteries, priories, and other religious 



CHURCH LAWS. 



219 



" houses of monks, canons and nuns, which had not in chap. v. 

' ' Sect. 6. 

" lands, tenements, rents, tithes, portions and other church 

property. 

" hereditaments, above the clear yearly value of two 
" hundred pounds." And also, ft all such monasteries, 
" abbeys, and priories, which, for one year before the 
" passing of this act, had been given and granted to his 
" majesty by any abbot, prior, or prioress, or that had 
" otherwise* been suppressed or dissolved ; and all their 
" lands, to have and to hold all the same unto the king's 
" majesty, his heirs and assigns for ever, to doe and 
" use therewith, at his and their own wills, to the 
" pleasure of Almighty God, and the honour and profit 
"of this realm" " All such ornaments, jewels, goods, 
'* chattels, and debts, as belonged to the chief gover- 
" nors of these monasteries, were given to the king for 
" his own proper use." — (Sec. 5.) 

From the lesser the monarch proceeded to the greater 
monasteries, or those above two hundred pounds a 
year. Within four years, these also fell into his hands. 
The 31st Henry VIII., cap. 13, states, that " the gover- 
" nors and governesses of their own free and volun- 
" tary minds, without constraint or compulsion [?], had 
" renounced, left, and forsaken," all their possessions ; 
these were very extensive, and included hospitals, 
colleges, chapels, manors, lordships, and a variety of 

* " Before this time, Cardinal Wolsey (by licence of the king and of 
" Pope Clement VII.) had obtained a dissolution of above thirty reli- 
** gious houses (most of them very small), for the founding and endowing 
' ' his colleges at Oxford and Ipsw ich ; so that the Pope himself had made 
" a precedent for the dissolution that followed." — Gibson Codex, vol. ii., 
page 1227. 



220 



THE HISTORY OF 



C sect P, 6 V " otner foundations. Many of these had been discharged 
church from the payment of tithes, and this privilege reverted 

property. , » r r e « t • -r h*xtt o<YO<±\\cil ** 

to the king and his grantees. Among these were the 
Duke of Norfolk, to whom " by word only " the king 
had granted the monastery of Sipton, in Norfolk ; and 
Lord Cobham, who had the college of Cobham, in 
Kent. These grants were confirmed by the act. 
a.d. i54i. Two years elapsed, and another dissolution took place. 
By the 32nd Henry VIII. , cap. 24, the possessions of St. 
John of Jerusalem (Knights Templars), in England and 
Ireland, were confiscated, because " the friars have 
" unnaturally sustained the usurped power of the bishop 
" of Rome, the common enemy to the king and to this his 
11 realm, untruly aflBrming, maliciously and traitorously, 
" that the same bishop is supreme and chief head of 
" Christ's church by God's holy word." Yet, to these 
very " traitors " the act assigned, out of the possessions 
of the body, various pensions, amounting to nearly three 
thousand pounds yearly. 

Subsequent acts (37th Henry VIII., cap. 4, and 1st 
Edward VI., cap. 14,) swept the whole monastic institu- 
tions away, and assigned all their lands, possessions, 
and goods, into the hands of these kings and their 
successors. 

These bitter pills the church, with many a wry face, was 
obliged to swallow whole. Even Mary, though she 
restored the Roman Catholic religion, did not attempt 
to recover the property the church had had confiscated. 
i S D at i554 ^ an ex P ress provision in the 1st and 2nd Philip and 
Mary, cap. 8, " the right and dominion of certain lands, 



CHURCH LAWS. 



221 



" goods, and chattels, belonging to archbishopricks, c s ^ t P g V - 
" bishopricks, monasteries, abbeys, priories, chantries, church 

property. 

" colleges, and religious houses," that had been sup- 
pressed or dissolved, were to be retained by the persons 
who might have become possessed of them ; and who 
without scruple of conscience may enjoy them, without 
" impeachment by general councils, canons, or eccle- 
" siastical laws." (Sees. 31, 35, and 36.) By this last 
section it appears that not only had Henry VIII., and 
his son Edward VI., but Mary by herself, or jointly 
with her husband, had " conveyed, for great sums of 
" money, to divers subjects of the laity, many of these 
" ecclesiastical possessions," all of which are retained 
to this day. 

\o I)B9d*i9ifIo bass 9Hi9iqua si qodeid 9nnsa sdi huii »' 

As respects church property in general, the ques- 
tion is often anxiously asked, " To whom does it 
"belong?" The answer is easy and plain. It is 
trust property ; as decidedly so, as any other pro- 
perty bequeathed for- specific purposes. It is a 
maxim of law, that in respect of charitable uses (and 
religious bequests are of this kind), the legislature 
has the control. An ancient law lays down, therefore, 
this broad principle, " Such things as be thought neces- 
" sary for the king and the commonwealth [pro rege 
" et republica] ought not to be said to be prejudicial 

Statute 

" to the liberty of the church." — 9th Edward II., cap. 8. a.d. ms. 



222 



THE HISTORY OF 



V £ o /^fit 4 >ffl-i>f( lOfltO 10V008tftfiW to ,Tmto TO LfiionivOTfJ ' 

^0^3 J^ojjna Ji sfl : noitoovnoo oifi nr bofto nd llcita' 

SECTION VII— CONVOCATION. 

sect P 7 Y " One °^ ^ ne mo& t important ancient rights of the 
church was to hold convocations. Each province exer- 
cised this privilege. Canterbury is called the upper, 
York the lower house of convocation. The times of 
meetingwere determined by their respective archbishops. 
All things pertaining to the interests of the church 
were then determined. This was the parliament of the 
clerical estate, and where the taxes payable by the clergy 
were imposed. # The senate, it is true, confirmed the 
taxes convocation had taken the initiative to fix. 
More than this, the canons of the church were made in 
convocation. But whatever importance the church 
attached to this privilege (and it was ever held of no 
slight value), it is now, as a source of self-government, 
entirely lost. It dare not meet without royal permis- 
sion. 

Statute. The 25th Henry VIII., cap. 19, says: "Whereas, 

..D.1534. 

u the king's humble and obedient subjects, the clergy 
" of this realm, have not only acknowledged, according 
" to the truth, that the convocations of the same clergy 
" is, always hath been, and ought to be assembled only 
" by the king's writ ; but also, submitting themselves to 
the king's majesty, hath promised, in verbo sacerdotii, 
"that they will never from henceforth presume to 
" attempt, allege, claim, or put in use, enact, promulge, 
" or execute any new canons, constitutions, ordinance, 

* See also page 75. 



CHURCH LAWS. 



223 



" provincial or other, or by whatsoever other name they c ^ t p, 7 v - 
" shall be called in the convocation : Be it enacted, Convocation, 
" according to the said submission and petition of the 
" said clergy, that they, nor any of them, from hence- 
" forth, shall presume to attempt, claim, allege, or put 
" in use any constitutions or ordinances, provincial or 
" synodal, or any other canons ; nor shall exact, 
" promulge, or execute any such canons in their convo- 
cations in time coming, unless the same clergy may 
" have the king's most royal assent and licence to make, 
" promulge, and execute such canons, upon pain of 
" every one of the said clergy doing contrary to this act, 
" and being thereof convict, to suffer imprisonment and 
" make fine at the king's will." Mary repealed this 
act. Elizabeth, cap. 1, sees. 6 and 10, revived it; and 
so far enlarged it as to make it extend " to your high- 
" ness, your heirs and successors, as fully and largely as 
" ever the same did extend to King Henry VIII., your 
" highness' father." 

The right to assemble is, however, still, pro forma-, 
preserved. At every new parliament, the sovereign 
generally convenes the convocation. But to what does 
it amount ? To an irritating formality. Stripped of all 
powers, the clergy must not "claim," "attempt," or 
even " allege" any matter, which the sovereign shall 
not previously have allowed them to discuss or decide. 
If revived, the laity must form a part. 



224 



THE HISTORY OF 



SECTION VIII. CHURCH BENEFICES. 

At first there were no parochial divisions of cures in 
England as there are now. The bishops and their 
clergy lived in common. The latter were sent out as 
itinerants to preach to the people ; but as the number 
of Christians increased, this occasional going from place 
to place was found inconvenient. The bishops, therefore, 
fixed the bounds for the ministrations of the clergy. 
These bounds generally went along with the manors, 
the lords of which built and endowed churches for the 
inhabitants of their districts. This laid the foundation 
for patrons. 

This division was gradual and voluntary. Many 
generations passed away before the whole country was 
parcelled out into parochial limits. Law never created 
them ; but having once obtained an existence by 
custom and prescriptive right, the law has invariably 
ratified both the boundaries and the privileges of the 
respective parties interested in their preservation.^ 

The Advowson is the right of nominating a proper 
person to fulfil the duties and to receive the profits of 
an ecclesiastical benefice. Anciently, the bishop had 
the sole cure of souls in his diocese. He also received 
all the profits, which he and the clergy distributed into 
four parts: — one to the bishop, to support hospitality and 
to maintain the clergy living with him ; one for the 
building and repair of churches ; one for the poor 

* Burn's Ecclesiastical Law (Parsh). 



CHURCH LAWS. 



225 



(15th Richard II., cap. 6, a.d. 1391) ; and one for the chap. v. 

Sect. 8. 

support of the inferior clergy, who were sent from place church 

benefices 

to place to preach and administer religious offices. As 
soon, however, as tithes were established as a law, i.e., 
before or about the time of Charlemagne, it was usual 
for the bishop to allocate to his vicar or curate the whole 
or part of the tithes. 

When the feudal lords, for the sake of having Divine 
service performed in their districts, were willing to 
alienate a part of their lands for building new churches, 
they were allowed to nominate a clergyman to the 
bishop, who was obliged to institute him, if qualified. 
Of this qualification the bishop, in 1315, by the 9th 
Edward II. , cap. 13; was made the judge. It 
says : — 

" Also it is desired that spiritual persons, whom our 
" lord the king doth present unto benefices of the church 
" (if the bishop will not admit them, either for lack of 
" learning or other cause reasonable), may not be under 
" the examination of lay persons in the cases aforesaid, 
" as it is now attempted, contrary to the decrees 
" canonical, but that they may sue unto a spiritual 
"judge for remedy as right may require." [The 
answer :] " Of the ability of a parson presented unto 
" a benefice of the church, the examination belongeth 
"to a spiritual judge ; and so it hath been used hereto- 
" fore and shall be hereafter." 

This law would have laid every benefice in the 
kingdom at the feet of the bishops, had not other laws 
given different remedies to patrons. These remedies 

Q 



226 



THE HISTORY OF 



chap. v. are? a writ of right, one of darrein presentment, and quare 
church impedlt. By the 13th of Edward I., cap. 5 (a.d. 1285), 

benefices. 

it appears that patrons, their widows, and heirs, were 
liable to be " disinherited of their advowsons." It gave, 
therefore, a writ of quare impedit to patrons and their 
heirs. Six months' notice (see also 44 George III., 
cap. 43) are to be given by the bishop that the church 
is vacant ; and the appointment will lapse to him if not 
by that time filled up. But if he fill up before the expira- 
tion of this time, or during the time of a suit, the patron 
can recover damages to the amount of two years' value 
of the church. This act was revived by the 1st of 
Mary, sessio secunda, cap. 5, sec. 4, and still remains 
in force. The minister or clerk, if refused institution 
by the bishop, may also cite him into the spiritual court, 
by what is called a duplex querela, if the bishop, within 
twenty-eight days after he hath been presented to him 
for institution, " do not inquire as to his sufficiency." — 
See 95th canon of 1603. 

One very important change, as to patronage, has 
been established by the 1st and 2nd Will. IV., cap. 38, 
sec. 5, which gives the perpetual patronage of new 
churches to individuals who build and endow them ; or, 
if built by subscription, those who had subscribed £50 
each may appoint trustees, to whom the patronage may 
also be perpetually assigned. * 

Donatives are the gifts of patrons in writing. They 
were at first considered private domestic chapels ; 

* Report of Church Building Commissioners to the House of Com- 
mons, No. 628 (1850), page 7. 



CHURCH LAWS. 



227 



but as the places or neighbourhoods increased, they c ^ t p ' 8 v - 
became churches or chapels with cure. They are Clmrdl 

benefices* 

exempt from ecclesiastical jurisdiction. Once made, 
they become perpetual. The donee may resign, or 
the donor may deprive. — (Gibsons Codex, vol. ii., 
p. 865.) 

It is, however, to be observed, that though the church 
is exempt from the power of the ordinary, the patron is 
not. He may, therefore, be compelled, by ecclesiastical 
censures, to nominate a clerk, otherwise the church 
might be unsupplied. 

Perpetual curacies are churches which were served 
by curates from the religious houses or monasteries. 
When these ceased, the churches came into lay hands, 
who were allowed to nominate some person to the ordi- 
nary for his licence to serve the cure. By this means 
he became so far perpetual as not to be wholly at the 
pleasure of the appropriator, nor removable but by 
due revocation of the licence of the ordinary. 

The clerks presented to donatives and curacies per- 
petual are obliged, in order to maintain possession, to 
qualify themselves, in all respects, as those who are pre- 
sented, instituted, or inducted. 

Chapelries may, by the 3rd Geo. IV., cap. 72, sec. 6, 
be constituted into district parish churches, and be 
deemed perpetual curacies, 58th Geo. III., cap. 45, 
sec. 25. If " exempt," i.e., peculiars, the chapels are 
" to be subject to the bishop within whose diocese the 
" altar is locally situate," 2nd and 3rd Will. IV., 
cap. 61. 

Q 2 



228 



THE HISTORY OF 



: s T ett P '8 V ' ■^ or * ne erect i° n of new churches provision has been 
cium* - made by the 58th Geo. III., cap. 45, and 59th Geo. 

benefices. 

III., cap. 134, which granted one million and a half of 
money to certain commissioners for building new 
churches. In 1850, there had been erected four hun- 
dred and seventy churches, in which provision has been 
made for 498,066 persons, including 291,190 free seats 
to the use of the poor. 

The complicated, and, in many instances, contradic- 
tory enactments contained in an immense accumulation 
of acts upon this one subject, render it next to impos- 
sible to present the general reader with anything like 
a satisfactory analysis of these laws. They may, as 
assuredly they ought to be, consolidated into one law, 
which even legal men might then have some chance 
to understand. 

simony. O ne offence against the laws of the church has 
always obtained, in spite of the many attempts made 
to prevent its continuance. It is that of Simony. 

This word takes its origin from Simon Magus, who 
thought to have purchased the gift of the Holy Ghost 
with money. It means a corrupt contract of gain from 
ecclesiastical sources. 

The canon and the statute law have uniformly 
opposed any such transactions. Othobon, the Pope's 
A^? n i™68 ^ e 8 a ^ e » denounced the practice. " Because, when pre- 
" sentation is to be made to a vacant church, he that is 
" to be presented, as we hear, very often first agrees 
" with the patron to pay him a certain annuity out of 
" the goods of the church, and so is presented by com- 



CHURCH LAWS, 



229 



" pact. We, intending to obviate this simony and c ^ t p 8 v - 
" waste done to the church, do wholly revoke all such ~ Church 

benefices. 

" promises and compacts, and forbid such to be made 
" in future ; and decree that if they be made, they shall 
" be of no force. And we revoke all pensions imposed 
f> on parochial churches, unless they who receive them 
" are warranted by lawful prescription, special privi- 
" lege, or some other certain right." 

A less ancient canon is more express. The 40th a.d. igos. 
of this date reads thus, " To avoid the detestable sin 
" of simony, because buying and selling of spiritual and 
" ecclesiastical functions, offices, promotions, dignities, 
" and livings, is execrable before God ; therefore, the 
" archbishop, and all and every bishop or bishops, or 
" any other person or persons, having authority to 
" admit, institute, collate, instal, or to confirm the 
" election of any archbishop, bishop, or other person 
Is to any spiritual or ecclesiastical function, dignity, 
" promotion, title, office, jurisdiction, place or benefice 
" with cure or without cure, or to any ecclesiastical 
" living whatsoever, shall, before such admission, colla- 
" tion, installation, or confirmation of election, respec- 
" tively minister to every person hereafter to be admitted, 
" &c, to any archbishoprick, bishoprick, dignity, pro- 
" motion, &c, this oath, in manner and form following ; 
" the same to be taken by every one whom it concerneth 
" in his own person and not by a proctor : — 4 1, N. N., do 

V swear that I have made no simoniacal payment, con- 

V tract or promise, directly or indirectly, by myself or 
" by any other, to my knowledge or with my consent, to 



230 



THE HISTORY OF 



chap.^v. " any person or persons whatsoever, for or concerning 
church " the procuring and attaining of this ecclesiastical dig- 

benefices. 

" nity, place, preferment, office, or living (respectively 
" and particularly naming the same), nor will at any 
" time hereafter perform or satisfy any such kind of 
" payment, contract, or promise made by any other, 
" without my knowledge or consent ; so help me God, 
" through Jesus Christ.' " 
ajdluss. The 31st Eliz., cap. 6, forbids " any person or persons 
" [parent or friend], bodies politick or corporate, making 
" a promise, agreement, bond, # covenant, or other 
" assurance, reward, gift, profit or benefit, directly or 
" indirectly, or any sum of money, for any benefice, 
" dignity, prebend, or living ecclesiastical." Nor may 
incumbents " exchange or resign" a living, directly or 
indirectly, " for any sum of money, pension, or bene- 
" fice." 



SECTION IX. ECCLESIASTICAL JURISDIC HON, AND 

CHURCH OFFICERS. 

It would be a waste of time and of words to discuss 
the divine or scriptural right of ecclesiastics to exercise 
their present civil powers. Ecclesiastical jurisdiction 
is derived solely from the crown. The laws are express 
upon this point. 

Thus the 25th Henry VIII., cap. 19, sec. 2, says, 
" No canons, constitutions, or ordinance shall be made 

* Bonds to resign a living, upon warning given to the presentee so to 
do, have been held void. — Gibson, 842 ; see also Burn on " Simony." 



CHURCH LAWS. 



231 



" or put in execution within this realm, by authority of chap.^v. 
" the convocation of the clergy, which shall be con- Ecclesiastical 

m jurisdiction, 

" trariant, or repugnant, to the king's prerogative royal, ^ d ce c r ^ urdl 
" or the customs, laws, or statutes of this realm." 

Still more express is the 37th Henry VIII., cap. 17, 
sec. 2, which says, " Archbishops, bishops, archdeacons, 
" and other ecclesiastical persons, have no manner of 
" jurisdiction ecclesiastical, but by, under, and from your 
" royal majesty" Section 4 gives " the king, his heirs, 
" and successors, power to make chancellors, vicars- 
" general, commissaries, officials, or registers, to exercise 
" all manner of jurisdiction, commonly called ecclesi- 
" astical jurisdiction." 

The 1st of Edward VI., cap. 2, was equally strong 
and expressive. Section 3 says, " archbishops and 
" bishops, and other spiritual persons, do use and send 
" out their processes, in such form as was used in 
" the time of the usurped power of the bishop of Rome, 
" contrary to the form of the common law of this realm, 
" seeing that all authority or jurisdiction, spiritual and 
" temporal, is derived and deducted from the king's majesty." 
And again, in the same section, " ecclesiastical juris- 
" diction" shall be exercised " immediately from the 
" king's highness." 

The principle is revived, or, more correctly speaking, 
re-announced by the 1st of Elizabeth, cap. 1, sec. 17 and 
18, which assigned to the queen all such spiritual and 
ecclesiastical jurisdiction as hath heretofore been exer- 
cised within these realms. The 8th of Elizabeth, cap. 
1, sec. 2, re-asserts that the sovereign " hath supreme 



232 



THE HISTORY OF 



chap.^v. " power, jurisdiction, and authority over all the estate 

Ecclesiastical " ecclesiastical." 

jurisdiction, , 

oSicers Urch r are tnese mere ly theoretic principles; they are 

constantly carried into practical operation. Laymen 
have for a long time past, and do now exercise eccle- 
siastical jurisdiction. When Henry dissolved the 
monasteries, (which, in very many, if not in all instances, 
had ecclesiastical jurisdiction in courts called "peculiars," 
i.e., exempt from the bishop's authority,) he assigned 
those courts to whom he liked, as by law he was enabled 
to do. 

In the 1st and 2nd Philip and Mary, cap. 8, sec. 48, 
it is stated as a grievance that this "jurisdiction" was 
in the hands "of temporal and lay men." It was 
therefore restored to ecclesiastics. 

But the 1st of Elizabeth, cap. 1, not only repealed 
this law of Mary, but revived those of Henry and 
Edward, above referred to ; the former of which have 
never been altered or repealed. To this day, therefore, 
there are no less than seventy-six ecclesiastical courts 
in the hands of laymen, — eleven " royal," seventeen 
" other peculiars," and forty-eight manorial,"* whether 
they be lords or ladies of the manor; and, in some 
few instances, the "jurisdiction is attached to the pos- 
" session of the great tithes, and not to the manor/' f 
More than this, the lord of the manor of Buildwas 
(diocese of Lichfield) delivered over " the spiritual and 



* Ecclesiastical Commission Report of 1832, Appendix, p. 552. 
f Return to the House of Commons, 25th March, 1830 (No. 205), 
page 419. 



CHURCH LAWS. 



233 




ictions " belonging thereto, " unto the chap. v. 



Sect. 9. 



" Rev. John Bartlett, clerk." The secular thus Ecclesiastical 



In further corroboration of the fact that the eccle- 
siastical is practically subordinated to the temporal 
jurisdiction, it is worthy of notice, that the common 
law courts often send prohibitions to the spiritual 



hibitions have been granted ever since the two orders 
of judicature were detached. 

No doubt there are cases in which the statute has 
provided that no such prohibitions shall issue ; such, 
for instance, as " deadly sins, as fornication, adultery, 
" leaving the churchyard unclosed, or the church un- 
" covered, or not sufficiently decked ; the demand of 
" oblations, accustomed tithes, mortuaries, pensions 
" due to prelate or patron, laying violent hands on a 
"clerk, defamation, and breaking an oath;" all of 
which causes the courts of common law cannot, by the 
13th Edw. I., cap. 1, (1285,) stop by prohibition. But 
if, in any even of these cases, property, or other civil 
rights are involved, the king's court will grant the pro- 
hibition so far as these matters are concerned. 

It may serve to illustrate the value of this veto over 
the spiritual courts, if a passing reference be made to a 
state paper, presented by Archbishop Bancroft, about 
1606, to the judges. This document emanated from the 
convocation ; among a great many other complaints 

* Return to the House of Commons, 16th April, 1829 (No. 177), 
page 45. 



imparted ecclesiastical jurisdiction.* 



jurisdiction, 
and clrarcli 
officers. 



courts, from proceeding further in a suit. These pro- 



234 



THE HISTORY OF 



c 5 A f o V ' a gainst the temporal courts, it states, that " the church is 
Ecclesiastical " pestered with prohibitions from different courts." To 

jurisdiction, 

officers 111011 wn ^ cn the judges replied, " It is a general unbeseeming 
" aspersion." The church had charged " the judges with 
" trifling with their oaths, by not maintaining the 
" ecclesiastical jurisdiction as much as the temporal." 
To this the judges answered, "For less scandal than 
" this, divers have been severely punished." — Collier. 

It is therefore evident, that so far as the episcopate 
is concerned, there is no essential or necessary connec- 
tion between an episcopalian polity and ecclesiastical 
jurisdiction. Transfer this to the common law courts, 
to which in strict right it belongs, and episcopacy in 
spiritual matters would be left intact. But as the 
matter now stands, a perfectly different order of things 
has been created, and is daily maintained. Hence there 
are no less than three hundred and seventy-two ecclesias- 
tical courts in England and Wales. In the greater part 
of the diocesan courts, clergymen act as judges, judge 
surrogates, chancellors, archdeacons, commissaries, and 
perform various legal functions. Thirty-six of these 
judges have had no legal education; and the proctors 
are, for the most part, said to be unacquainted with 
ecclesiastical law. # 

The judges of the two archiepiscopal courts of Canter- 
bury and York are appointed, and may at any time be 
removed, by the archbishops. The same thing obtains 
in all the consistory courts of the bishops. In this 

* Report of Ecclesiastical Commission, App., p. 86, question 58. 



CHURCH LAWS. 



235 



respect the ecclesiastical exercises a higher prerogative °fjj£-^- 
than the monarchical power. Alone, the sovereign Ecclesiastical 

jurisdiction, 

cannot remove a judge from any of the common law ^ church 

J ~ J officers. 

courts. More than this, — trial by jury has never 
obtained in the " courts christian." All is left with 
the judge, whose income is derived solely from 
fees. 

The advocates are doctors of civil or Roman law ; 
they must have taken a corresponding degree at Oxford 
or Cambridge University, and are admitted by per- 
mission of the archbishops of Canterbury or York. 
They also can be interdicted from practising in court 
by the diocesan, if he is not satisfied with the continued 
adherence of the party to the doctrines and discipline 
of the church of England. The same fact obtains, also, 
in respect of every other ecclesiastical practitioner.* 

The surrogates in the diocesan courts are, for the 
most part, clergymen. In London, every advocate is a 
surrogate, so far as the administration of oaths is con- 
cerned. As ministers of the bishop, surrogates grant 
marriage licences, which are a remnant of the papal 
power, but which, in some districts, yield a very lucrative 
return. In all the courts, surrogates conduct judicial 
processes "pro forma, and thus occasionally relieve the 
different judges. 

Chancellors are generally clergymen ; rarely, laymen. 
They are appointed by the bishop of the diocese, and 
have their courts, which take cognisance of most 

* Return to the House of Commons, No. 287, 26th March, 1830, 
pp. 8, 12, 15, 21, and 30. 



236 



THE HISTORY OF 



C i£tV' matters pertaining to ecclesiastical jurisdiction. By 

Ecclesiastical 

patent from the bishop of Norwich to the Rev. William 

jurisdiction, . . , . 

oincers 1 " 011 * on g' e ' appointing him chancellor, it appears he was 
to take cognisance " of all crimes, excesses, and delin- 
" quencies of any persons, as well clergy as laity of 
" both sexes, and to correct and punish them according 
" to his sound learning and discretion given him 
" by the Lord, and to constrain them to perform 
" penances." * 

An archdeacon is oculus episcopi. His eye traces 
out, on behalf of the bishop, whatever may be supposed 
to require his interference, both in respect of the 
clergy, churchwardens, and other church officers. 
There are thirty-seven courts belonging to archdeacons, 
in which they exercise a jurisdiction that is not only 
spiritual, but embraces civil rights ; such as the grant 
of probates and administrations, the validity of wills and 
marriages, divorces, seats in churches, and other matters. 
They are also bound, by the 86th canon of 1603, to 
enforce the reparation of the fabric of churches at 
triennial visitations. 

Commissaries and chancellors have the same duties ; 
the latter being a higher post of ecclesiastical honour 
than the former. 

Proctors are in the ecclesiastical, what solicitors or 
attorneys are in the common law courts, — l.e% they 
conduct suits. They are admitted by permission of the 
archbishop or bishop, and at the time swear an obedience 
to the lawful commands of their diocesan. 

* Return to the House of Commons, No, 691, 23rd July, 1830, p. 1. 



CHURCH LAWS. 



Churchwardens arose, as a distinct order of church chap. v. 

Sect. 9. 

officers, somewhere about 1321 . They are appointed Ecclesiastical 

, _ , jurisdiction, 

by the ministers and parishioners ; each choosing one. ^admi-ch 
They are bound to attend to the reparation of the 
church, to provide books, and all other requirements 
for Divine service, and the administration of sacraments ; 
to take charge [as trustees] of all charitable bequests to 
the parish, and to perform ministerially a great variety 
of subordinate duties. By the 115th canon of 1603, it 
will be seen they are obliged to present, to the eccle- 
siastical judge, criminal and disorderly persons, so as 
to " restrain shameless impiety." To them it pertains, 
as officers of the church, to take the initiatory step 
towards the correction either of the clergy or laity. 

In addition to this numerous staff of ecclesiastical 
officers, each armed with singular powers, there is 
another class of persons who exercise ordinary [or 
bishop-like] jurisdiction. In many instances, the bishop 
of the diocese is excluded from all ecclesiastical autho- 
rity in places, which, though within his territorial limits, 
are yet exempt from his interference. He may be 
supplanted by a dean, prebend, or rector of a " peculiar," 
of which he is ordinary or bishop. The variety of these 
peculiars, and the very deadly grasp with which their 
officers hold possession, is an almost endless source of 
public inconvenience and wrong. To many young- 
clergymen they prove particularly annoying. " Can- 
" didates for orders, with titles from these peculiars, have 
" frequently no little difficulty as to their ordination, and 



238 



THE HISTORY OF CHURCH LAWS. 



chap. v. « in some instances have been altogether disappointed. 

Sect. 9 



Ecclesiastical " Those who have episcopal jurisdiction are anxious to 

jurisdiction, 

" dismissory from these authorities." 



officers" 01 ' " raam ^ a ^ n ^, and the bishops refuse to accept letters 



* Chancellor Marsh's Examination, in Ecclesiastical Commission 
Appendix to Report, 1843 (No. 132), page 112. 



APPENDIX. 



No. I.— ADMISSION OF ROMAN CATHOLICS TO 



Extracts from 11 An Act for the Belief of His Majesty's Roman 
Catholic Subjects*'' ivhich passed on the \%th day of April, 1829, 



Whereas by various acts of Parliament certain restraints and disa- 
bilities are imposed on the Roman Catholic subjects of his Majesty, to 
which other subjects of his Majesty are not liable : and whereas it is 
expedient that such restraints and disabilities shall be from henceforth 
discontinued : and whereas by various acts certain oaths and declarations 
against transubstantiation, the invocation of saints, and the sacrifice of 
the mass, as practised in the church of Rome, are or may be required to 
be taken, made, and subscribed by the subjects of his Majesty, as qualifi- 
cations for sitting and voting in Parliament, and for the enjoyment of 
certain offices, franchises, and civil rights : Be it enacted, that from and 
after the commencement of this act, all such parts of the said acts as 
require the said declarations, or either of them, to be made or subscribed 
by any of his Majesty's subjects, as a qualification for sitting and voting 
in Parliament, or for the exercise or enjoyment of any office, franchise, or 
civil right, be and the same are (save as herein-after provided and ex- 
cepted) hereby repealed. 

II. Any person professing the Roman Catholic religion, being a peer, 
or who shall be returned as a member of the House of Commons, may sit 
and vote in either House of Parliament respectively, being in all other 
respects duly qualified to sit and vote therein, upon taking and subscribing 
the following oath, instead of the oaths of allegiance, supremacy, and 
abjuration : — 



PARLIAMENT. 



(Referred to in page 117.) 




240 



APPENDIX. 



"I, A. B., do sincerely promise and swear, that I will be faithful and 
" bear true allegiance to his Majesty King George the Fourth, and will 
" defend him to the utmost of my power against all conspiracies and 
''attempts whatever, which shall be made against his person, crown, or 
" dignity ; and I will do my utmost endeavour to disclose and make 
" known to his Majesty, his heirs and successors, all treasons and traitor- 
" ous conspiracies which may be formed against him or them : and I do 
" faithfully promise to maintain, support, and defend to the utmost of my 
"power, the succession of the crown, which succession, by an act, 
"intituled 'An Act for the further Limitation of the Crown, and better 
" securing the Eights and Liberties of the Subject,' is and stands limited 
" to the Princess Sophia, electress of Hanover, and the heirs of her body, 
"being Protestants; hereby utterly renouncing and abjuring any obe- 
" dience or allegiance unto any other person claiming or pretending a 
" right to the crown of this realm : and I do further declare, that it is not 
" an article of my faith, and that I do renounce and reject and abjure the 
"opinion, that princes excommunicated or deprived by the Pope, or any 
" other authority of the see of Rome, may be deposed or murdered by 
" their subjects, or by any person whatsoever : and I do declare, that I do 
" not believe that the Pope of Rome, or any other foreign prince, prelate, 
" person, state, or potentate, hath or ought to have any temporal or civil 
"jurisdiction, power, superiority or pre-eminence, directly or indirectly, 
" within this realm. I do swear, that I will defend to the utmost of my 
" power the settlement of property within this realm, as established by the 
"laws: and I do hereby disclaim, disavow, and solemnly abjure any 
" intention to subvert the present church establishment as settled by law 
"within this realm : and I do solemnly swear, that I never will exercise 
"any privilege to which I am or may become entitled, to disturb or 
" weaken the Protestant religion or Protestant government in the United 
" Kingdom : and I do solemnly, in the presence of God, profess, testify, 
" and declare, that I do make this declaration, and every part thereof, in 
"the plain and ordinary sense of the words of this oath, without any 
" evasion, equivocation, or mental reservation whatsoever. 

" So help me God." 

III. The name of the sovereign for the time being to be used in the 
oath. 

IV. No Roman Catholic capable of sitting or voting until he has taken 
the oath. 

V. Roman Catholics may vote at elections, and be elected, upon taking 
the oath. 

VI. Oath shall be administered in the same manner as former oaths. 

VII. Persons administering oaths at elections to take an oath duly to 
administer. 



APPENDIX. 



241 



VIII. So much of any acts as require the formula contained in the 
8th and 9th Win. III., cap. 3 (S.), to be tendered or taken, repealed. 
Roman Catholics may elect and be elected members for Scotland, and be 
enrolled as freeholders in any shire or stewartry of Scotland, and be 
chosen commissioners or delegates for choosing burgesses to serve in Par- 
liament for any districts of burghs in Scotland, being in all other respects 
duly qualified, such persons always taking and subscribing the oath herein- 
before appointed and set forth, instead of the oaths of allegiance and 
abjuration as now required by law, at such time as the said last- 
mentioned oaths, or either of them, are now required by law to be 
taken. 

IX. No Roman Catholic priest to sit in the House of Commons ; and 
proof of the celebration of any religious service by such person, according 
to the rites of the church of Rome, shall be deemed and taken to be 
prima facie evidence of the fact of such person being in holy orders, 
within the intent and meaning of this act. 

X. Roman Catholics may hold civil and military offices under his 
Majesty, with certain exceptions. 

XI. Not to exempt Roman Catholics from taking any other oaths 
required. 

XII. Provided that nothing herein contained shall extend, or be con- 
strued to extend, to enable any person or persons professing the Roman 
Catholic religion, to hold or exercise the office of guardians and justices 
of the United Kingdom, or of Regent of the United Kingdom, under 
whatever name, style, or title such office may be constituted ; nor to 
enable any person, otherwise than as he is now by law enabled, to hold or 
enjoy the office of lord high chancellor, lord keeper, or lord commissioner 
of the great seal of Great Britain or Ireland ; or the office of lord 
lieutenant, or lord deputy, or other chief governor, or governors of 
Ireland; or his Majesty's high commissioner to the general assembly of 
the church of Scotland. 

XIII. Nothing herein to repeal 7th Geo. IV., cap. 72, as to the levy 
and application of church rates and parish cesses, and the election of 
churchwardens and the maintenance of parish clerks, in Ireland. 

XIV. Roman Catholics may be members of lay corporations. 

XV. Provided nevertheless, that nothing herein contained shall extend 
to authorise or empower any of his Majesty's subjects professing the 
Roman Catholic religion, and being a member of any lay body corporate, 
to give any vote at, or in any manner to join in the election, presentation, 
or appointment of any person to any ecclesiastical benefice whatsoever, or 
any office or place belonging to or, connected with the united church of 
England and Ireland, or the church of Scotland, being in the gift, 
patronage, or disposal of such lay corporate body. 

R 



242 



APPENDIX. 



XVI. Provided also, that nothing in this act contained shall be con- 
strued to enable any persons, otherwise than as they are now by law 
enabled, to hold, enjoy, or exercise any office, place, or dignity of, in, or 
belonging to the united church of England and Ireland, or the church of 
Scotland, or any place or office whatever of, in, or belonging to any of 
the ecclesiastical courts of judicature of England and Ireland respectively, 
or any court of appeal from, or review of the sentences of such courts ; 
or of, in, or belonging to the commissary court of Edinburgh ; or of, in, 
or belonging to any cathedral or collegiate, or ecclesiastical establishment 
or foundation ; or any office or place whatever of, in, or belonging to any 
of the universities of this realm ; or any office or place whatever, and by- 
whatever name the same may be called, of, in, or belonging to any of the 
colleges or halls of the said universities, or the colleges of Eton, West- 
minster, or Winchester, or any college or school within this realm ; or to 
repeal, abrogate, or in any manner to interfere with any local statute, 
ordinance, or rule, which is or shall be established by competent 
authority, within any university, college, hall, or school, by which 
Roman Catholics shall be prevented from being admitted thereto, or from 
residing or taking degrees therein : provided also, that nothing herein 
contained shall extend, or be construed to extend, to enable any person, 
otherwise than as he is now by law enabled, to exercise any right of pre- 
sentation to any ecclesiastical benefice whatsoever ; or to repeal, vary, or 
alter in any manner, the laws now in force in respect to the right of 
presentation to any ecclesiastical benefice. 

XVII. Provided always, that where any right of presentation to any 
ecclesiastical benefice shall belong to any office in the gift or appointment 
of his Majesty, his heirs or successors ; and such office shall be held by a 
person professing the Roman Catholic religion, the right of presentation 
shall devolve upon and be exercised by the archbishop of Canterbury for 
the time being. 

XVIII. It shall not be lawful for any person professing the Roman 
Catholic religion, directly or indirectly, to advise his Majesty, his heirs 
or successors, or the lord lieutenant, or lord deputy, or other chief 
governor or governors of Ireland, touching or concerning the appointment 
to, or disposal of any office or preferment in the united church of 
England and Ireland, or in the church of Scotland ; and if any such 
person shall offend in the premises, he shall, being thereof convicted by 
due course of law, be deemed guilty of a high misdemeanor, and disabled 
for ever from holding any office, civil or military, under the crown. 

XIX. Time and manner of taking oaths for corporate offices, within 
one month next before or upon admission. 

XX. Time and manner of taking oaths for other offices under the 
crown, within three months. 



APPENDIX, 



243 



XXI. Penalty of two hundred pounds on acting in offices without 
taking the oath. 

XXII. Oath by military and naval officers. 

XXIII. No other oaths necessary to be taken by Roman Catholics. 

XXIV. And whereas the Protestant episcopal church of England and 
Ireland, and the doctrine, discipline, and government thereof, and like- 
wise the Protestant Presbyterian church of Scotland, and the doctrine, 
discipline, and government thereof, are by the respective acts of Union of 
England and Scotland, and of Great Britain and Ireland, established 
permanently and inviolably. And whereas the right and title of arch- 
bishops to their respective provinces, of bishops to their sees, and of deans 
to their deaneries, as well in England as in Ireland, have been settled and 
established by law ; be it therefore enacted, that if any person, after the 
commencement of this act, other than the person thereunto authorised by 
law, shall assume or use the name, style, or title of archbishop of any 
province, bishop of any bishopric, or dean of any deanery, in England 
or Ireland, he shall for every such offence forfeit and pay the sum of one 
hundred pounds. 

XXV. If any person holding any judicial or civil office, or any 
mayor, provost, jurat, bailiff, or other corporate officer, shall resort to or 
be present at any place or public meeting for religious worship in England, 
or in Ireland, other than that of the united church of England and Ireland, 
or in Scotland other than that of the church of Scotland as by Jaw 
established, in the robe, gown, or other peculiar habit of his office, or 
attend with the ensign or insignia, or any part thereof, of or belonging 
to such his office, such person shall, being thereof convicted by due course 
of law, forfeit such office, and pay for every such offence the sum of one 
hundred pounds. 

XXVI. If any Roman Catholic ecclesiastic, or any member of any of 
the orders, communities, or societies hereinafter mentioned, shall, after the 
commencement of this act, exercise any of the rites or ceremonies of the 
Roman Catholic religion, or wear the habits of his order, save within the 
usual places of worship of the Roman Catholic religion, or in private 
houses, such ecclesiastic or other person shall, being thereof convicted by 
due course of law, forfeit for every such offence the sum of fifty pounds. 

XXVII. Not to repeal statute 5th George IV., cap. 25, as relates to 
burials in suppressed monasteries, abbeys, or convents in Ireland, and to 
make further provision with respect to the burial in Ireland of persons 
dissenting from the established church. 

XXVIII. And whereas Jesuits and members of other religious 
orders, communities, or societies of the church of Rome, bound by 
monastic or religious vows, are resident within the United Kingdom ; 
and it is expedient to make provision for the gradual suppression and final 

R 2 



244 



APPENDIX. 



prohibition of the same therein ; be it therefore enacted, that every Jesuit, 
and every member of any other religious order, community, or society of 
the church of Rome, bound by monastic or religious vows, who at the 
time of the commencement of this act shall be within the United Kingdom, 
shall, within six calendar months after the commencement of this act, 
deliver to the clerk of the peace of the county or place where such person 
shall reside, or to his deputy, a notice or statement, in the form, and 
containing the particulars required to be set forth in the schedule to this 
act annexed ; which notice or statement such clerk of the peace, or his 
deputy, shall preserve and register amongst the records of such county or 
place, without any fee, and shall forthwith transmit a copy of such notice 
or statement to the chief secretary of the lord lieutenant, or other chief 
governor or governors of Ireland, if such person shall reside in Ireland, or 
jf in Great Britain, to one of his Majesty's principal secretaries of state ; 
and in case any person shall offend in the premises, he shall forfeit and pay 
to his Majesty, for every calendar month during which he shall remain in 
the United Kingdom without having delivered such notice or statement 
as herein-before required, the sum of fifty pounds. 

XXIX. Jesuits, &c, coming into the realm, to be banished. 

XXX. Natural-born subjects, being Jesuits, may return into the 
kingdom and be registered. 

XXXI. The principal secretaries of state may grant licences to Jesuits, 
&c, to come into the kingdom ; and may revoke the same. 

XXXII. Accounts of licences to be laid before parliament. 

XXXIII. In case any Jesuit, or member of any such religious order, 
community, or society as aforesaid, shall after the commencement of this 
act, within any part of the United Kingdom, admit any person to become 
a regular ecclesiastic, or brother, or member of any such religious order, 
community, or society, or be aiding or consenting thereto, or shall 
administer or cause to be administered, or be aiding or assisting in the 
administering or taking any oath, vow, or engagement, purporting or 
intended to bind the person taking the same to the rules, ordinances, or 
ceremonies of such religious order, community, or society, every person 
offending in the premises in England or Ireland shall be deemed guilty of 
a misdemeanor, and in Scotland shall be punished by fine and imprisonment. 

XXXIV. In case any person shall, after the commencement of this 
Act, within any part of this United Kingdom, be admitted or become a 
Jesuit, or brother or member of any other such religious order, community, 
or society as aforesaid, such person shall be deemed and taken to be guilty 
of a misdemeanor, and being thereof lawfully convicted shall be sentenced 
and ordered to be banished from the United Kingdom for the term of his 
natural life. 

XXXV. and XXXVI. The party offending may be banished by 



APPENDIX. 



245 



bis Majesty ; and if at large after three months, may be transported 
for life. 

XXXVII. Provided always, and be it enacted, that nothing herein 
contained shall extend or be construed to extend in any manner to affect 
any religious order, community, or establishment consisting of females 
bound by religious or monastic vows. 

XXXVIII. Penalties to be recovered as a debt due to his Majesty, by 
information filed in the name of the attorney-general. 



Xo. II.— OCCASIONAL COXFOBMITY. 

(Referred to in page 160.) 

Almost immediately upon the accession of Queen Anne, an attempt was 
made by the House of Commons to prevent "occasional conformity." 
A bill was brought in and passed that House, in winch it was asserted 
that the Toleration Act " ought inviolably to be observed ; 11 yet, as 
"several persons dissenting from the church as it is by law established do 
"join with the members thereof in receiving the sacrament of the Lord's 
"supper, to qualify themselves to have and enjoy offices and employments, 
" and do afterwards resort to conventicles : " it therefore provided, " that 
£ * if any person holding office under her Majesty, mayors and aldermen 
"and common councilmen, shall, at any time, be present at any con- 
venticle, he shall forfeit one hundred pounds for every day he shall 
"continue in the said office or employment, and be disabled from holding 
"it." 

The bill was carried to the Lords on Saturday, 28th of November, 
1702, who made many important amendments and additions. On the 
9th of December, they sent a message to the Commons and the bill, with 
several amendments. This led to conferences between the two Houses, 
which were continued up to January, when the Lords gave in their reasons 
for insisting upon some of the clauses they had added. Among other 
reasons they say : — 

" Their lordships observe, that as the law now stands any person 
" having an office may be present at mass upon much easier terms 
" than he might be present at a conventicle. 

" They who think the being present at a meeting to be so high a 
"crime, can hardly think that a toleration of such meetings ought 
" to continue long, and yet the bill says the Act of Toleration ought 
"to be kept inviolable." 



246 



APPENDIX. 



A free conference then took place on the 16th of January. The 
managers from the Commons reported: — 

" That there was such a crowd in the Painted Chamber that 
"the managers could not get to the table." 
Ordered — 

" That no member do presume to stand within the bar in the 
" Painted Chamber, but such as are appointed managers. 

" That the serjeant-at-arms summon the nienibers there to attend 
"the service of the House immediately." 
The Serjeant reported that several members did still remain in the 
Painted Chamber. 
Ordered — 

" To take their names." 
The House was informed that many members remained in the passage 
between the House and the Painted Chamber. 
Ordered — 

"That the serjeant go with the mace into the said passage and 
"summon the members." 
Reported — 

That he had done so ; but that several members remained in the lobby 
and the rooms there. 
Ordered — 

"That they all do come into the House." 
The Commons reported their free conference to the following effect ; 
among other reasons — 

" That they had argued that the interests of the Church and State 
" were not to be supported without such a bill. 

" That since the invention and iniquity of men had found out 
" ways to evade the law, the Commons could never doubt but the 
" Lords would let those men see they would not be wanting on 
" their part to maintain and support it. 

" That an established religion and a national church are abso- 
lutely necessary, when so many ill men pretend to inspiration, 
" and when there are so many weak men to follow them. 

" That they never imagined a set of men could at any time rise 
" up whose consciences were too tender to obey the laws, but 
"hardened enough to break through any. 

" That to separate from a church which has nothing in it against 
"a man's conscience to conform to, is schism, which is a spiritual 
" sin." 

To which the Lords replied, among other things : — 

" That the Lords do not take going to a meeting to be malum 

" in se. 



APPENDIX. 



247 



"That in the greatest extremity of the church, the Dissenters 
"had joined with her; when the bishops were in the Tower, the 
" Dissenters showed they had no prejudice to the church. 

" That as hospitals and workhouses were not to be closed against 
"Dissenters, their lordships asked 'what hurt can there come 
"from Dissenting bread and cheese, or Presbiterian water- 
"grewel V 

"That every man knows the liturgy of the church, but none the 
" practice, there is such variety in it." 
And the bishop of Sarum further added, " he supposed every man 
" believed the two first of the Thirty-nine articles; but there have been 
" many good and learned men who could not bring themselves up to give 
" their assents to some of the last." 

And as the bill comprehended foreigners (especially French), who had 
settled in England because of their liberties, the Lords added : — 

" That the improvements of our manufactures are much owing 
" to the foreigners that have come among us, which are so increased 
" that, in the late reign, we exported a million of manufactures 
"yearly, for several years, more than in King Charles's reign." 
The Commons made several replies ; stating, inter alia — 

" That they were surprised to hear a prelate speak in defence of 
" occasional conformity." 
The Lords insisted upon their amendments. 

The Commons persisted in their disagreements, and so the bill dropped.* 



No. III.— CONGE D'ELIEE ; OH, THE EIGHT TO 
CHOOSE. 

(Referred to in p. 196.) 

Gulielmus Tertius, Dei Gratia Anglise, &c. Dilectis nobis in Christo 
decano et capitulo, ecclesia nostra cathedralis Lincoln, salutem. Ex 
parte vestra nobis est, humiliter supplicatum, ut cum ecclesia prsedicta, per 
translationem reverendissimi in Christo patris Thomse Tenison, nuper 
episcopi Lincoln, ad archiepiscopatum Cantuariensem, jam vacat, et 
pastoris sit solatio destituta, alium vobis eligendi in episcopum et 
pastoretn, licentiam nostram, fundationam vobis concedere dignaremur. 
Nos precibus vestris in hac parte favorabiliter inclinati, licentiam illam 
vobis tenore prsesentium duximus concedandam : Rogantes, ac in fide et 

* Reports and Conferences, printed by order of the House of Commons, 1702. 



248 



APPENDIX. 



dilectione quibus nobis tenemini prsecipientes, quod talem vobis eligatis in 
episcopum et pastorem, qui Deo devotus, nobisq ; et regno nostro utilis et 
fidelis existat. In cujus rei testimonium has litems nostras fieri fecimus 
patentes. Teste meipso apud Westm., vicessimo quinto die Januarii, 
anno regni nostri sexto. — a.d. 1694. 

LETTER MISSIVE— RESTRICTING THE CHOICE. 
William R. Trusty and well-beloved, we greet you well. Whereas the 
bishopric of Lincoln is, at this present, void by the translation of the 
most reverend father in God, Dr. Thomas Tenison, late bishop there, to 
the archbishopric of Canterbury ; we let you weet, that for certain con- 
siderations, us at this present moving, we of our princely disposition and 
zeal, being desirous to prefer unto the same see a person meet thereunto ; 
and considering the virtue, learning, wisdom, and other the good gifts 
wherewith the Rev. James Gardiner, doctor in divinity, and sub-dean of 
our cathedral church of Lincoln aforesaid, is endued, we have been 
pleased by these our letters to name and recommend him unto you, to be 
elected and chosen to the said bishopric of Lincoln. Wherefore, we 
require you, upon receipt thereof, to proceed to your election, according 
to the laws of this our realm, and our conge d'elire, herewith sent unto 
you ; and the same election so made to certifie unto us, under your 
common seal. Given under our sign, at our palace at Westminster, the 
twenty-fifth day of January, in the sixth year of our reign. — 1694. — 
(Gibson, Appendix 4 and 5.) 

• 

■ 



! 



ZZSLZ:?*- INDEX. 



Alfred-^ First penal statute made in his time respecting Christianity, 85. 
Anointing — 140. 

Archbishop of Canterbury — Metropolitan of the realm, 183. 

Power above other bishops, 200. 
Articles — (the Thirty-nine), legal standard of the Reformed faith, 20. 

The Six Articles Act of Henry VIII., 97. 
Auyustine — Primary object of his mission, 6. 

Resistance of the British bishops, 7. 

Their memorable reply to his proposals, 8. 

Death of, 10. 

Baking Bread for the Sacraments — to be by priests, 141. 
Baptism — Said to be the first plank of salvation, 137. 

May be administered by lay men or women, ib. 

Punishment for neglecting, by priests or parents, ib. 
Benefit of clergy — What; when abolished, 35. 

Instance of an eoc post facto law taking it away, ib. 
Bishops — Originally appointed by the people, 195. 

Appointment by the crown ; laws respecting, ib. 

Peers of Parliament, 181. 

Exceptions, ib. 

Power over the clergy, 130. 

Election of, pronounced by law a shadow, 198. 

Homage to the sovereign for temporalities, 203. 

Gradation of rank among, 199. 

Independence of each other, 201. 
Bishoprics — vide Episcopal Sees. 

Hook of Common Prayer — Legal standard of rites and ceremonies, 20. 
Burial — Christian burial, to whom denied, 75. 

Prayers offered at, in the time of Edward VI., compared with those now 
used, 149. 



250 



INDEX. 



Burial— Fees, 165. 

Constitutional right of interment denied by ecclesiastical law, and remedy 
for, 167. 



Canon law — Introduction of, 14. 

Denounced, and yet enforced by statute, 16. 
Canonical decrees — Opposition to them pronounced heresy, 22. 
Chancery court — Guided in many respects by ecclesiastical laws, 13. 
Christianity — First legal establishment of, by canon law, 84. 

Progress of, in Britain, before Augustine's time, 3. 

Not yet free, 161. 
Churches — British, state of, prior to Augustine's arrival, 3-6. 

Resistance to Augustine's mission, 7. 

Submission to Rome, 9. 
Church of England— Self-government of, 180. 

Interference with various secular matters, 23. 

Placed under four different kinds of law, 12-21. 

The property of, derived from benefactions of individuals, 90, 212. 

Division of, 224. 

Its position in the state, 179. 

Property of the church appropriated to secular purposes, 218. 
See also under King. 
Clergy — Striking the, laws respecting, 34. 

Benefit of clergy — see under this head. 
Celibacy of, 121. 

Ancient exemption of, from civil authority, 28. 

Abolition of the privilege, 34. 

One of the greatest estates in the realm, 181. 
Communion — In both kinds, legally established, 148. 

Not to be denied to any one, ib., and 174. 
Confirmation — 143. 
Confession — A sacrament, 142. 

Evils of, and not to be disclosed, 145. 
Conge d' elire — Or the right to elect a bishop, 247. 
Consecration — Of elements : churches, 140. 
Convocation — 75, and 222. 
Councils — The first four ; standard of faith, 21. 



Death — Penalty of, by canon law, for second marriage, 78. 

The belief that the time of our death is appointed by God, legally 
denounced, 99. 
Discipline—h-dws of, relating to the laity, 171. 

Laws of, relating to priests, 175. 



INDEX. 



251 



Ecclesiastical jurisdiction — Whence derived, 19, 231. 

Extent of its powers, 172. 

Administrators of, 172. 
Episcopal sees — Creation of, vested in the crown, 203. 

Restitution of temporalities by the sovereign to bishops, 209. 
Episcopacy — Abolished and restored, 46. 
Excommunication — 1 77 . 

Fasts— Enjoined by canon law ; abolished by statute law, 138-139. 
Heathenism — Saxon ; what, 83. 

Heresy — The Catholic and Protestant standards, 21-22. 

Ignorant priests—Canon law against, 126. 
Inspiration — Claimed for synods, 88. 

Claimed for Book of Common Prayer, 152. 

Judicial powers of the church, confined to its own members, 173. 
Not sanctioned by Scripture, 174. 

King — The head of the church, when first declared, 186. 
Extent of his powers as such, 190. 
The fountain of all ecclesiastical dignity, 203. 
Entitled to tenths from every spiritual promotion, 207. 
Sole authority to make bishops, 196. 

Patron of all possessions and benefices of the church, 184. 
Free of the Pope, 185. 

Law — The expression of national character, 1. 

Said to be the perfection of reason ; and proof to the contrary, 158. 

Absurdity of enforcing religious truth by legal sanction, 160. 

Roman law, when and by whom first introduced, 12. 

Canon law, denounced by statute ; parliamentary pledge that it should 

be abolished, 16. 
Statute law, 19. 

Mixture of secular and spiritual authority under Rome Pagan, 12; 
under Christianity, 15. 
Legates — Different kinds of, 14 (note.) 

Liturgical forms of worship — Various in different dioceses, 151. 
Lollards — The first reformers, 

Penal statutes against them, 90. 



252 



INDEX. 



Marriage — A sacrament, solemnisation, 48. 
Degrees of, 49. 
Different laws of, 53. 
Pre-contracts of, 54. 

Second marriages exposed to death, 56, 77. 
Abolished, 217. 
Monasteries-Dissolved, 219. ' 
Monarchy and Christianity— -United, 86. 
Mortmain — 210-215. 
Mortuaries— 16b. 

,8la9hq zuonimho noqr/ baJoiftnl 

Nonconformists — First law against, 107. 



it .go MiA 



Oath — Ex officio, abolished, 80. 
Offerings, when made compulsory, 162. 

At one time amounted to a penny, 163. 
Ordination — Episcopal, 123. 

Moravian, 124. 

Church of Rome admitted valid, 124. 



Pardons and indulgences — Granted by the church, 37. 

Abolished by statute, 39. 
Physicians — Once licensed by bishops, 41. 

See also Trades. 

Pope — of Rome; first submission of the British churches to his authority, 9. 

Denounced by statutes, 55, 184, 185, 205, 220. 
Premunire — The acts of, 197. 
Priests — The highest spiritual distinction, 119. 

Ordination — by bishop and ministers, 123. 

Subscription to thirty-nine articles, 125. 

Rules as to dress — obedience, 120. 

Orders, not to be relinquished, 131. 

How deprived, 134. 

Concurrence of the people in their ordination, 128. 
Probates — See Wills. 



Quakers — Affirmation admitted, 113. 
Queen Anne's Bounty — 194. 



Rates for repairing the church — 168. 

Regalia — Ancient exercise of royal prerogatives by the church, 37. 



INDEX. 



253 



Religious opinions— 102-1 17. 

Roman Catholics— Penal Statutes against, 105—115. 

Sacrilege — Punishment for stealing from a church or a priest, abolition of the 

privilege, 23, 25. 
Sanctuaries — Abuses of, and abolition, 26. 
Scriptures — Forbidden to be translated or read, 93. 
Sin punished by law, 172. 

Slavery — {English) — Denounced by canon, 73. 

Inflicted upon criminous priests, 34. 
Supremacy — See King. 

Tenths of all ecclesiastical promotions paid to the crown, 207. 
Test Acts — Corporation, clergy, and parliamentary, 110, 111, 112. 
Tithes, 65, 71. 

Made civil rights, 68. 

Payment of, by Quakers, 69. 
Toleration Act— 116, 160. 
Trades— Canons respecting, 41. 
Transubstantiation — Defined by law, 97. 

Death — not to believe it, 97. 

Penalty for believing it, and repeal of, 1 12. 

a \6 bochllodA 
' :,c : ■ 

Unity — Various laws enforcing, 87 — 102. 
Uniformity Acts — History and failure of, 150 — 160. 
Unitarians — Denied, and afterwards admitted to toleration, 113. 
Usury — A canonical offence, 71. 

;d — noiififlibiO 

Wickliffe, John — Denounced, 93. 

Wills — Interference of the church, in making and in proving wills, 57. 
Evils of this usurpation, 64. 



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